Law  Lib. I 


C30 
1916 
V.  2 

COPY    1 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


AT 

LUS  ANGELES 

LIBRARY 


THE 

CODES  OF  CALIFORNIA 


AS  AMENDED  AND  IN    FORCE  AT  THE    CLOSE   (JF  THE 

FORTY-FIRST  SESSION  OF  THE  LEGISLATURE 

1915 


IN  FOUR  \  GLUMES 


EDITF.D  BY 

JAMES  M.  KERR 


VOLUME  TWO 
C  IVIL  UODK 


LOS  ANGELES 
WAYSIDE  PRESS 

IMItl.ISIlKIO 
1<J15 

130103 


OrfY   \ 

Copyright,  1915, 
By  James  M.  Kerr. 


x'^ 


CONSPECTUS. 


.SertiiillS. 

TITLE   OF  THE  ACT 1 

PRELIMINARY  PROVISIONS    2-21 

DIVISION  FIRST.     (Sees.  25-653zb.) 

PART  I.     PERSONS    25-42 

II.     PERSONAL  RIGHTS    43-54 

III.     PERSONAL   RELATIONS    55-276 

Title  I.     Marriage    55-181 

Chapter  I.     The  Contract  of  Marriage  55-80 

Article   I.      \  alidity   of   Marriage    55-63 

II.     Authentication  of  Marriage' 68-79a 

III.     Judicial      Determination      of      \  oid 

Marriages    80 

Chapter   II.      Divorce    82-148 

Article    1 .     Nullity    82-86 

II.      Dissolution    90-107 

III.     Causes  for  Denj'ing  Divorce 111-132 

l\  .     General    Provisions    136-148 

Chapter  III.     Husband  and   Wife    155-181 

Title  II.     Parent   and   Child    193-230 

Chapter  I.     By    Birth 193-215 

II.     By   .\doption    221-230 

Title  III.     Guardian  and  Ward    236-258 

IV.     Master  and   Apprentice    264-276 

PART  IV.     CORPORATIONS    283-653zb 

Title  I.     General  Provisions  Applicable  to  all  Cor- 
porations     283-410 

Chapter   1.     Formation   of   Corporations 283-321b 


Articl 

e   I. 

II. 

Chapter 

II. 

Articl 

e   I. 

II. 

Chapter 

III. 

Articl 

e  I. 

II. 

III. 

IV. 

Chapter 

IV. 

CONSPEJCTUS 

Sections. 
Corporations     Defined     and     How 

Organized    283-30()a 

By-Laws,  Directors,  Elections,  and 

Meetings    301-3211) 

Corporate    Stock    322-349 

Stock  and  Stockholders  322-328 

Assessment  of  Stock  331-349 

Corporate  Powers   354-393 

General   Powers , 354-365 

Records    i77,Z7^ 

Examination  of  Corporations    ....      382-384 
Judgment  Against  Corporations...      388-393 
Extension      and      Dissolution      of 

Corporations    399-403 

V.     General  Provisions  Affecting  Cor- 
porations      403a, 404 

VI.     Foreign   Corporations    405-410 

Title  II.     Insurance   Corporations    414-453hh 

Chapter  1.     General   Provisions    414-422 

II.     Fire     and     Marine     Insurance     Cor- 
porations         424-432 

III.     Mutual   Life,   Health,   and   Accident 

Insurance  Corporations   437-452 

l\ .     Mutual    Benefit    and    Life    Associa- 
tions    ■. 452a.  453 

\'.     Corporations   to    Discover   Fire   and 
Save    Property    and    Human    Life 

from  Destruction  Thereby   453a-453c 

\\.     Life.  Health,  Accident,  and  Annuity 
or   Endowment   Insurance   on   tlie 

Assessment  Plan    453d-453p 

\'II.     Title  Insurance  Corporations 453s-453z 

\TII.     Mortgage   Insurance    453aa-453hh 


OONRPEOTTTS 

Sections. 
Title  III.     Railroad  Corporations    454-494 

Chapter  I.     Officers  and  Corporate  Stock 454-459 

II.     Enumeration  of  Powers 465-478 

III.     Business,  How  Conducted    479-494 

Title  IV.     Street  Railroad  Corporations 497-511 

V.     Wagon  Road  Corporations   512-524 

VI.  Bridge,  Ferry,  Wharf,  Chute,  and  Pier 

Corporations 528-531 

VII.  Telegraph  and  Telephone  Corporations     536-540 
VIII.     Water  and   Canal  Corporations    548-552 

IX.     Homestead  Corporations   557-566 

X.     Savings  and  Loan  Corporations   571 -583b 

XI.     Mining    Corporations    586-590 

XIa.  Corporations  for  the  Formation  of 
Chambers  of  Commerce,  Boards  of 
Trade,     Mechanics'     Institutes,     and 

Kindred  Associations   591-592e 

XII.     Religious,  Social,  and  Benevolent  Cor- 
porations         593-605 

Xlla.  Societies  for  the  Prevention  of  Cruelty 

to  Children  and  Animals 607-607g 

XIII.  Cemetery  Corporations    608-616 

XIV.  Agricultural  Fair  Corporations   620-622 

XV.     Corporations     to     Furnish     Light     for 

Public  Use    629-632 

XVI.     Building  and   Loan   Associations 633-648a 

XVII.     Colleges  and  Seminaries  of  Learning..      649-651 
XVIII.     Consolidation  of  Colleges  and  Institu- 
tions of  Higher  Education  652,  653 

XIX.     Co-operative  Business  Corporations...  653a 
XX.     Co-operative   Business   Associations.  .  .653h-6531 
XXI.     Non-Profit    Co-operative    Agricultural, 
Viticultural,  and  Horticultural  Asso- 
ciations    653m-653s 

XXII.     Non-Profit        Co-operative        Corpora- 
tions     653t-653zb 


CONSPECTTTR 

Sections. 
DIVISION  SECOND.     (Sees.  654-1426s.) 

PART  I.     PROPERTY  IN  GENERAL   654-749 

Title  I.     Nature  of  Property   654-663 

II.     Ownership    669-742 

Chapter  1.     Owners    669-672 

II.  Modifications  of  Ownership 678-726 

Article   I.     Interest  in  Property   678-703 

II.     Conditions  of   Ownership    707-711 

III.  Restraints   upon   Alienation    715-718 

IV.  Accumulations    722-726 

Chapter   III.     Rights    of    Owners    732. 7iZ 

IV.     Termination  of  Ownership    739-742 

Title  III.     General  Definitions   748,  749 

PART  II.     REAL      OR     IMMOVABLE     PROP- 
ERTY      755-940 

Title  I.     General  Provisions    755 

II.     Estates  in  Real  Property    761-811 

Chapter  I.     Estates   in    General    761-781 

II.     Termination  of  Estates    789-793 

III.     Servitude      801-811 

Title  III.     Rights  and  Obligations  of  Owners..  ..  818-843 

Chapter  I.     Rights  of  Owners    818-834 

Article   I.     Incidents  of  Ownership   818-827 

II.     Boundaries    829-834 

Chapter  II.     Obligations  of   Owners    840-843 

Title  IV.     Uses   and   Trusts    847-871 

V.     Powers    [Repealed]     878-940 

PART  III.     PERSONAL  OR  MOVABLE  PROP- 
ERTY       946-995 

Title  I.     Personal   Property   in   General 946,  947 

II.     Particular  Kinds  of  Personal  Property..  953-995 

Chapter  I.     Things  in  Action   953-955 

II.     Shipping    960-973 

Article   I.     General   Provisions    960-966 

II.     Rules   of   Navigation    970-973 


CONSPKCTTTS 

Sections. 

Chapter   III.     Products  of  the  Mind   980-985 

IV.     Other    Kinds    of    Personal    Prop- 
erty          991-995 

PART  IV.     ACQUISITION  OF  PROPERTY  ...  l()0U-1426s 

Title  I.     Modes    in    which    property    may    be    ac- 
quired      •.  .  1000,  1001 

II.     Occupancy 1006.  1007 

III.     Accession    1013-1033 

Chapter  I.     To   Real   Property 1013-1019 

II.  To   Personal   Property    1025-1033 

Title  IV.     Transfer     1039-1231 

Chapter  I.     Transfer  in   General    1039-1085 

Article   I.     Definition  of  Transfer   1039.  1040 

II.     What  May  Be  Transferred    1044-1047 

III.  Mode  of  Transfer    1052-1060 

I\'.     Interpretation  of  Grants    1066-1072 

\'.     EflFect'  of  Transfer   1083-1085 

Chapter  II.     Transfer  of  Real  Property   1091-1115 

Article  I.     Mode  of  Transfer    1091-1096 

II.     Eflfect  of  Transfer   1104-1115 

Chapter  III.  Transfer  of  Personal  Property ...  1135-1 153 

Article  I.     Mode  of  Transfer  1135.  1136 

II.  What   Operates  as   a   Transfer ....  1 140-1142 

III.     Gifts    1146-1153 

Chapter  IV'.  Recording      Transfers      of      Real 

Property    1158-1218 

Article  I.     What  May  Be  Recorded   1158-1165 

II.     Mode  of  Recording  1169-1173 

III.  Proof     and     Acknowledgments     of 

Instruments    1 180-1207 

IV.  Eflfect    of    Recording,    or   of    Want 

Thereof    1213-1218 

Chapter  V.     Unlawful  Transfers   1227-1231 

vii 


CONSPECTUS 

Sections. 

Title    V.     Homesteads    1237-1269c 

Cliapter   1.     General   Provisions    1237-1261 

II.     Homestead  of  the   Head  of  a   Fam- 
ily     1262-1265 

III.  Homestead  of  Other  Persons   1266-1269 

IV.  Alienation  of  Homestead  of  Insane 

Persons    . .  .' 1269a-1269c 

Title  VI.     Wills     1270-1377 

Chapter   1.     Execution  and  Revocation  of  Wills  1270-1313 

II.     Interpretation  of  Wills    1317-1351 

III.     General      Provisions      Relating      to 

Wills     1357-1377 

Title  VII.     Succession     1383-1409 

VIII.     Water    Rights    1410-1422 

IX.     Hydraulic    Mining    1424,  1425 

X.     Locating      Mining      Claims,      Tunnel 

Rights,   Mill-sites    1426-1426s 

DIVISION  THIRD.     (Sees.  1427-3268.) 

PARTI.     OBLIGATIONS    IN    GENERAL 1427-1543 

Title  I.     Definition  of   Obligations 1427-142^' 

II.     Interpretation  of   Obligations 1429-1451 

Chapter  I.     General  Rules  oi  Inlcrpretalior  .  .  .  .  1429 

II.     Joint  or  Several  Obligations 1430-1432 

III.     Conditional    Obligations    1434-1442 

I\'.     Alternative   Obligations    1448-1451 

Title  III.     Transfer   of   Obligations 1457-1468 

IV.     Extinction   of    Obligations 1473-1543 

Chapter  I.     Performance     1473-1479 

II.     Ofifer   of    Performance    1485-1505 

III.     Prevention  of  Performance  or 

Offer    1511-1515 

I\'.     Accord  and   Satisfaction    1521-1524 

\'.     Novation    1530-1533 

\I.     Release    ..1541-1543 


CONSrEOTTTS 

Sect  ions. 

PART  II.     CONTRACTS     1549-1701 

Title  I.     Nature  of  a  Contract 1549-1615 

Chapter   1.     Definition     1549,  1550 

II.     Parties     1556-1559 

III.  Consent     1565-1589 

IV.  Object    1595-1599 

V.     Consideration     1605-1615 

Title  II.  Manner  of  Creating  Contracts 1619-1629 

III.  Interpretation  of  Contracts 1635-1661 

IV.  Unlawful    Contracts    1667-1676 

V.  Extinction   of    Contracts 1682-1701 

Chapter   I.     Contracts.  How  Extingiiislied 1682 

II.     Rescission    1688-1691 

III.     Alteration   and   Cancelation    1697-1701 

PART  III.     OBLIGATIONS      IMPOSED      BY 

LAW    1708-1715 

IV.     OBLIGATIONS    ARISING    FROM 

PARTICULAR  TRANSACTIONS.  1721-3268 

Title  I.     Sale     1721-1798 

Chapter  I.     General   Provisions    1721-1741 

Article  I.     Sale     1721,  1722 

II.     Agreement  for  Sale   1726-1734 

III.     Form   of  the   Contract 1739-1741 

Chapter   II.     Rights     and     Obligations     of     the 

Seller   1748-1778 

.Article   I.     Rights    and    Duties    Before    Deliv- 
ery      1748,  1749 

II.     Delivery     1753-1758 

III.      Warranty     1763-1778 

Chapter   III.      Rights     and     Obligations     of     the 

Buyer    1784-1786 

I\'.     Sale    by    .\uction 1792-1798 

i.K 


CONRPKOTTTS 

Sections. 
Title  II.     Exchange    1804-1807 

III.     Deposit     1813-1878 

Chapter   1.      Deposit  in   General    1813-1828 

Article   I.     Nature  and   Creation   of   Deposit ..  1813-1818 

II.     Obligations  of   the   Depositary 1822-1828 

Chapter   II.     Deposit    for    Keeping 1833-1872 

Article   I.     General   Provisions    1833-1840 

II.     Gratuitous    Deposit    1844-1847 

III.     Storage    1851-1857 

1 1  la.   Warehousemen    1858-18581 

I\'.     Innkeepers     1859-1863 

\'.     Finding    1864-1872 

Chapter   III.     Deposit  for   Exchange    1878 

Title  IV.     Loan    1884-1920 

Chapter  I.     Loan   for   Use    1884-1896 

II.     Loan  for   Exchange    1902-1906 

IIL     Loan   of   Money   1912-1920 

Title  V.     Hiring     1925-1959 

Chapter  I.     Hiring    in    General    1925-1935 

II.     Hiring  of  Real  Property   1941-1950 

III.     Hiring  of  Personal   Property 1955-1959 

Title  VI.     Service    1965-2079 

Chapter   I.     Service    With    Employment 1965-2003 

Article   I.     Definition    of    Employment 1965 

II.     Obligations  of  the    Employer 1969-1971 

III.     Obligations  of  the   Employee 1975-1992 

IV.     Termination   of   Employment    ....1996-2003 

Chapter   II.     Particular  Employments 2009-2072 

Article   I.     Master   and   Servant 2009-2015 

II.     Agents    2019-2022 

III.  Factors    2026-2030 

IV.  Shipmasters    2034-2044 

V.     Mates  and  Seamen    2048-2066 

\I.     Ship's    Manager    2070-2072 

Chapter  III.     Service   Without   Employment ..  .2078.  2079 

X 


CONSPKr'TT'S 

Sections. 

Title  VII.     Carriage    2085-2209 

Chapter   I.     Carriage  in  General  2085-209U 

11.     Carriage  of  Persons   2096-2104 

Article   1.     Gratuitous  Carriage 2096 

II.     Carriage   for   Reward    2100-2104 

Chapter  III.     Carriage  of  Property    2110-2155 

Article   I.     General  Definitions   2110 

II.     Obligations  of  the   Carrier 2114-2122 

III.     Bill  of  Lading   2126-2132 

IW     Freightage    2136-2144 

V.     General   Average    2148-2155 

Chapter  I\'.     Carriage    of    Messages 2161,2162 

\  .     Common    Carriers    2168-2209 

Article   I.     Common    Carriers    in    General ....  2168-2177 

II.     Common  Carriers  of  Persons 2180-2191 

III.     Common  Carriers  of  Property ...  .2194-2204 
I\'.     Common   Carriers  of   Messages.  ..  2207-2209 

Title  VIII.     Trusts      2215-2289 

Chapter  I.     Trusts   in   General 2215-2244 

Article  I.     Nature  and  Creation  of  a  Trust ..  .2215-2224 

II.     Obligations   of  Trustees    2228-2239 

III.     Obligations   of  Third   Persons. ..  .2243,  2244 
Chapter  II.     Trusts    for    the    Benefit    of    Third 

Persons    i 2250-2289 

Article   I.     Nature  and  Creation  of  the  Trust .2250-2254 

II.     01)ligations   of   Trustees    2258-2263 

III.     Powers  of  Trustees   2267-2269 

I\'.     Rights  of  Trustees   lIji-221':, 

\.     Termination   of   the   Trust 2279-2283 

\T.     Succession      or      Appointment      of 

New  Trustees    2287-2289 

Title  IX.     Agency     2295-2389 

Chapter  I.     .\gency   in   General 2295-2356 

Article   I.     Definition  of  Agency    2295-2300 

II.     Authority  of  Agents   2304-2326 

xi 


('ONSPRCTTTS 

SfM'lions. 
Til.     Mutual    ( )l)lii4ati()ns    of    Principals 

and   Third    Persons    2330-2.V39 

]\'.     Obligations    of    Agents    to    Third 

Persons    2342-2345 

V.     Delegation  of  Agency    2349-2351 

W.     Termination   of   Agency 2355,2356 

Chapter  II.     Particular    Agencies    2362-2389 

Article   I.     Auctioneers    2362,  2363 

II.     Factors    2367-2369 

III.     Shipmasters  and   Pilots    2373-23S5 

l\.     Ships'   Managers    2388.2389 

Title  X.     Partnership    2395-2520 

Chapter   I.     Partnership    in    General    2395-2418 

Article   I.  What   Constitutes   a   Partnership .  .2395-2397 

II.     Partnership  Property    2401-2406 

III.  Mutual  Obligations  of  Partners ..  .2410-2413 

IV.     Renvinciation    of    Partnership 2417,2418 

Chapter  II.  General    Partnership     2424-2472 

Article   I.  What  is  a  General  Partnership..  ..  2424 

II.  Powers  and  Authority  of  Partners. 2428-2431 

III.  Mutual    Obligations   of    Partners .  .2435-2438 

I\'.  Liability   of   Partners '. 2442-2445 

\'.  Termination    of    Partnership 2449-2454 

\'I.  Liquidation     2458-2462 

VII.  Of  the  Use  of  Fictitious  Names.  ..2466-2472 

Chapter   III.     Special    Partnership    2477-2510 

Article   I.     Formation  of  Partnership   2477-2485 

II.      Powers,  Rights,  and  Duties  of  the 

Partners     2489-2496 

III.     Liability   of   Partners 2500-2503 

IV.     Alteration   and    Dissolution   of   the 

Partnership     2507-2510 

Chapter  IV.     Mining    Partnership     2511-2520 

xii 


CONSPECTUS 

Sections. 

Title  XI.     Insurance     2527-2766 

Chapter  I.     Insurance  in   General 2527-2649 

Article   I.     Definition  of  Insurance    2527 

II.     What   May   Be   Insured    2531-2534 

■      III.     Parties    2538-2542 

IV.     Insurable  Interest    2546-2558 

\'.     Concealment   and    Representation. 2561-2583 

\I.     The  Policy  2586-2599 

VII.     Warranties   2603-2612 

VIII.     Premiums    2616-2622 

IX.     Loss .  .2626-2629 

X .     Notice    of   Loss    2633-2637 

XI.     Double   Insurance    2641,2642 

XII.     Reinsurance     2646-2649 

Chapter   II.      Marine    Insurance    2655-2746 

Article   I.      Definition    of    Marine    Insurance..  2655 

II.     Insurable   Interest    2659-2665 

III.     Concealment    '. 2669-2672 

IV.     Representations    2676,  2677 

V,     Implied    Warranties    2681-2688 

VI.     The   Voyage,   and   Deviation 2692-2697 

VII.     Loss    2701-2712 

VIII.     Abandonment    21\(i-n2>l 

IX.     Measure    of   Indemnity    2736-2746 

Chapter   III.     Fire    Insurance    2752-2757 

\\ .     Life   and   Health    Insurance 1762-2766 

Title  XII.     Indemnity .  .2772-2781 

XIII.     Guaranty     2787-2866 

Chapter    1.      (uiaranty  in   (ieneral    2787-2825 

Article    I.      Defiiiitioii    of   (hiaranty    2787,2788 

11.     Creation   of  Guaranty   2792-2795 

111.      Interpretation    of   (iuaranly    2799-2802 

1\'.      Liability   of   Guarantors    2806-2810 

V.     Continuing-   Guaranty    2814,  2815 

VI.     Exoneration   of   Guarantors    2819-2825 

xiii 


CONSPECTUS 

Sections. 

Chapter  II.     Suretyship    2831-2866 

Article  I.     Who   Are   Sureties    2831,2832 

II.     Liability  of  Sureties    2836-2840 

III.     Rights  of  Sureties   2844-2850 

I\'.     Rights   of   Creditors 2854 

V.     Letter  of  Credit   2858-2866 

Title  XIV.     Lien    2872-3080 

Chapter  I.     Liens    in    General    2872-2913 

Article   I.     Definition  of  Liens    2872-2877 

II.     Creation   of   Liens    2881-2884 

III.  Effect  of  Liens  2888-2892 

IV.  Priority  of  Liens 2897-2899 

V.  Redemption   from   Liens    2903-2905 

VI.  Extinction  of  Liens 2909-2913 

Chapter  II.     Mortgage    2920-2973 

Article   I.     Alortgages   in   General 2920-2942 

II.     Mortgages  of  Real  Property 2947-2952 

III.  Mortgages  of  Personal  Property .  .2955-2973 
Chapter  III.     Pledge 2986-3011 

IV.     Bottomry    3017-3029 

V.     Respondentia     3036-3040 

VI.  Other    Liens    3046-3065 

VII.  Stoppage   in  Transit    3076-3080 

Title   XV.     Negotiable  Instruments    3086-3262 

Chapter  I.     Negotiable  Instruments  in  General. 3086-3165 

Article   I.     General  Definitions    3086-3095 

II.     Interpretation    3099-3104 

III.     Indorsement     3108-3125 

IV.  Presentment   for   Paymenl 3130-3137 

\'.     Dishonor    3141-3151 

\\.      Excuse      of      Presentment      and 

Notice     3155-3160 

\I1.     Extinction    3164,3165 

xiv 


CONSPECTUS 

Sections. 

Chapter  II.     Bills    of    Exchange 3171-3238 

Article   I.     Form  and  Interpretation 3171-3177 

II.     Days   of    Grace 3181 

III.  Presentment    for    Acceptance 3185-3189 

IV.  Acceptance   3193-3199 

\'.     Acceptance      or      Payment      for 

Honor    3203-.U07 

\'l.     Presentment   for   Payment 3211-3214 

\'II.     Excuse      of      Presentment      and 

Notice    3218-3220 

\'III.     Foreign   Bills    3224-3238 

Chapter  III.     Promissory    Notes 3244-3248 

IV.     Checks    3254,  3255 

V.     Bank    Notes    and    Certificates    of 

Deposit  ' 3261.3262 

Title  XVI.     General    Provisions    3268 

DIVISION  FOURTH.     (Sees.  3274-3543.) 

PART  I.     RELIEF    3274-3425 

Title  I.     Relief  in  General  3274,  3275 

II.     Compensatory    Relief    328L-3360 

Chapter  I.     Damages  in  General   3281-3294 

Article   I.     General    Principles    3281-3283 

II.     Interest  as  Damages   3287-3290 

III.     Exemplary    Damages    ..  3294 

Chapter   11.     Measure    of    Damages    3300-3360 

.\rticlc    [.     Damages  for  Breach  of  Contract ..  3300-3319 

II.     Damages  for  Wrongs .3333-3341 

III.     Penal   Damages    3344-3348 

W.     General   Provisi'ns 3353-3.1^0 

Title  III.     Specific  and  Preventive  Relief 3366-3423 

L  liajjier   I.     General   Principles   3366-3369 

a.     Specific    Relief    3375-3415 

XV 


CONSPECTUS 

Sections. 

Article   I.     Possession   ot    Real   Property 3375 

II.     Possession  of  Personal  Propertj'. 3379,  3380 
III.     Specific     Performance     of     Obliga- 
tions      3384-3395 

IV.     Revision  of  Contracts 3399-3402 

\'.     Rescission  of  Contracts   3406-3408 

VI.     Cancelation  of  Instruments 3412-3415 

Chapter  III.     Preventive    Relief    ....■ 3420-3423 

PART  II.     SPECIAL  RELATIONS  OF  DEBT- 
OR AND   CREDITOR 3429-3473 

Title  I.     General  Principles   3429-3433 

II.     Fraudulent  Instrument  and  Transfers.  .  .3439-3442 
III.     Assignments   for   the   Benefit   of   Credit- 
ors     3449-3473 

PART  III.     NUISANCE    3479-3503 

Title  I.     General  Principles   3479-3484 

II.     Public  Nuisances    3490-3495 

III.     Private  Nuisances    3501-3503 

PART  IV.     MAXIMS  OF  JURISPRUDENCE.  ...3509-3543 


CIVIL  CODE. 

AN  ACT   TO    ESTABLISH   A   CIVIL   CODE 

[Approved  March  21,  1872.] 

The   people   of   the    state   of   California,   represented   in   the 
senate   and   assembly,   do   enact   as   follows: 

TITLE  OF  THE  ACT. 

§  1.     This    act    shall   be   known    as    the    Civil    Code   of   the 
State  of  California,  and  is  in  four  divisions,  as  follows: 
I.     The  first  relating  to  persons. 
II.     The    second   to  property. 

III.  The  third  to  obligations. 

IV.  The    fourth    contains    general    provisions    relating    to 
the    three    preceding    divisions. 

History:      Enacted  Marcli    21,   1872. 


PRELIMINARY  PROVISIONS. 

2.  When   this   code   takes   effect. 

3.  Not   retroactive. 

4.  Rules   of   construction. 

5.  Provisions   similar   to   existing   laws,    how   construed. 

6.  Actions,    etc.,    not   affected. 

7.  Holidays. 

8.  Same    [repealed]. 

9.  Business  days. 

10.  Computation    of   time. 

11.  Certain   acts   not   to   be   done    on    holidays. 

12.  Joint   authority   construed. 

13.  Words    and    phrases,    how    construed. 

14.  Certain   terms   defined. 

15.  Good    faith,    what    constitutes    [repealed]. 

16.  Degrees   of  care   and   diligence    [repealed]. 

17.  Degrees    of   negligence    [repealed]. 

18.  Notice,   actual   and   constructive. 

19.  Constructive  notice.      [When  deemed.] 

20.  Effect   of  repeal. 

21.  This  act,   how  cited. 


§2.  WHEN  THIS  CODE  TAKES  EFFECT.  This  code 
takes  effect  at  twelve  o'clock  noon  on  the  first  daj^  of  Janu- 
ary,  eighteen   hundred   and    seventy-three. 

Hi.st(irj-:      Enacted  March   21,   1872. 

§  3.  NOT  RETROACTIVE.  No  part  of  it  is  retroactive, 
unless  expressly   so   declared. 

Htstiiry:     Enacted   March   21,   1872. 

§4.  RULES  OF  CONSTRUCTION.  The  rule  of  the 
common  law,  that  statutes  in  derogation  thereof  are  to  be 
strictly  construed,  has  no  application  to  this  code.  The 
code    establishes    the    law    of   this    state    respecting    the    sub- 


§§  5-7  CIVIL    CODE. 

jects  to  which  it  relates,  and  its  provisions  are  to  be  liberallj' 
construed  with  a  view  to  effect  its  objects  and  to  promote 
justice. 

History:  Enacted  March  21,  1872;  amended  by  the  Code  Com- 
mission, Act  March  16.  1901,  Stats,  and  Amdts.  1900-1,  p.  332; 
amendment  declared  unconstitutional  in  Lewis  vs.  Dunne,  134 
Cal.  291,  86  Am.  St.  Rep.  257,  66  Pac.  Rep.  478,  55  L.  R.  A.  833. 
See   Code   Civ.   Proc,   Pt.   I,   Introductory   note. 


§5.  PROVISIONS  SIMILAR  TO  EXISTING  LAWS, 
HOW  CONSTRUED.  The  provisions  of  this  code,  so  far 
as  the}'  are  substantially  the  same  as  existing  statutes  or 
the  common  law,  must  be  construed  as  continuations  there- 
of, and  not  as  new  enactments. 

History:  Enacted  March  21,  1872;  amended  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  332;  unconstitutional,  see  history, 
§  4  ante. 


§6.  ACTIONS,  ETC.,  NOT  AFFECTED.  No  action  or 
proceeding  commenced  before  this  code  takes  effect,  and  no 
right   accrued,   is   affected   by   its   provisions. 

History:      Enacted  March   21,   1872. 

§  7.  HOLIDAYS.  Holidays  within  the  meaning  of  this 
code,  are  every  Sunday,  the  first  day  of  January,  the  twelfth 
day  of  February  to  be  known  as  Lincoln  day,  twenty-second 
day  of  February,  thirtieth  day  of  Alay,  fourth  day  of  July, 
ninth  day  of  September,  first  Monday  in  September,  twelfth 
day  of  October,  to  be  known  as  "Columbus  day,"  twent}'^- 
fifth  day  of  December,  every  day  on  which  an  election  is  held 
through  [out]  the  state,  and  every  day  appointed  by  the 
president  of  the  United  States  or  by  the  governor  of  this 
state  for  a  public  fast,  thanksgiving  or  holiday. 

If  the  first  day  of  January,  twelfth  day  of  February,  twenty- 
second  day  of  February,  the  thirtieth  daj^  of  May,  the  fourth 


PRELIMINARY    PROVISIONS.  §  8 

day  of  July,  the  ninth  day  of  September,  the  twelfth  day  of 
October,  or  the  twenty-fifth  day  of  December  falls  upon  a 
Sunday,  the   Monday  following  is  a  holiday. 

Every  Saturday  from  twelve  o'clock  noon  till  twelve  o'clock 
midnight  is  a  holiday  as  regards  the  transaction  of  business 
in  the  public  offices  of  this  state,  and  also  in  political  divisions 
thereof  where  laws,  ordinances  or  charters  provide  that 
public  offices  shall  be  closed  on  holidays;  this  shall  not  be 
construed  to  prevent  or  invalidate  the  issuance,  filing,  service, 
execution  or  recording  of  any  legal  process  or  writtcMi  in- 
strument  whatever   on   such    Saturday   afternoons; 

[Public  schools.]  And  provided  further,  that  the  public 
schools  of  this  state  shall  close  on  Saturday,  Sunday,  the 
first  day  of  January,  the  thirtieth  day  of  May,  the  fourth  day 
of  July,  the  twenty-fifth  day  of  December  and  on  every  day 
appointed  by  the  president  of  the  United  States  or  the  gov- 
ernor of  this  state  for  a  public  fast,  thanksgiving  or  "holi- 
day. Said  public  schools  shall  continue  in  session  on  all 
other  legal  holidays  and  shall  hold  proper  exercises  com- 
memorating the  day.  Boards  of  school  trustees  and  cit}'- 
boards  of  education  shall  have  power  to  declare  a  holiday  in 
the  public  schools  under  their  jurisdiction  when  good  reason 
exists   therefor. 

History:  Enacted  March  21,  1872;  amended  ISSO,  Code  Amdts. 
1880  (C.  C.  pt.),  p.  9;  1889,  Stats,  and  Amdts.  1889,  p.  47;  1S93, 
Stats,  and  Amdts.  1893,  p.  186;  1897,  Stats,  and  Amdts.  1897,  p. 
14;  March  18,  1907,  Stats,  and  Amdts.  1907,  p.  565,  Kerr's  Stats, 
and  Amdts.  1906-7,  p.  899;  February  19,  1909,  Stats,  and  Amdts. 
1909,  p.   23;   March   27,   1911,   Stats,   and   Amdts.    1911,   p.    520. 


§8.     SAME    [repealed]. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion amendment  of  March  16.  1901,  Stats,  and  Amdts.  1900-1, 
p.  332;  held  unconstitutional,  see  history,  §  4  ante;  repealed,  Act 
Feb.   20,  1905,   Stats,  and  Amdts.   1905,  p.   11. 


§§9-13  CIVIL    CODE. 

§9.  BUSINESS  DAYS.  All  other  clays  than  those  men- 
tioned in  section  seven  are  to  be  deemed  business  days  for 
all   purposes. 

History:  Enacted  March  21,  1S72;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  332;  held 
unconstitutional,  see  history,  §  4  ante;  amended  Feb.  20,  1905, 
Stats,  and  Amdts.  1905,  p.   11. 

§  10.  COMPUTATION  OF  TIME.  The  time  in  which 
any  act  provided  by  law  is  to  be  done  is  computed  by  ex- 
cluding the.  first  day  and  including  the  last,  unless  the  last 
day  is  a  holiday,  and  then  it  is  also  excluded. 

History:     Enacted  March   21,   1872. 

§  11.  CERTAIN  ACTS  NOT  TO  BE  DONE  ON  HOLI- 
DAYS. Wherever  any  act  of  a  secular  nature,  other  than 
a  work  of  necessity  or  mercy,  is  appointed  by  law  or  con- 
tract to  be  performed  upon  a  particular  day,  which  day  falls 
upon  a  holiday,  it  may  be  performed  upon  the  next  business 
day,  with  the  same  effect  as  if  it  had  been  performed  upon 
the    day    appointed. 

History:     Enacted  March   21,   1872. 

§  12.  JOINT  AUTHORITY  CONSTRUED.  Words  giv- 
ing a  joint  authority  to  three  or  more  public  officers  or  other 
persons  are  construed  as  giving  such  authority  to  a  majority 
of  them,  unless  it  is  otherwise  expressed  in  the  act  giving 
the    authority. 

History:     Enacted  March   21,   1872. 

§  13.     WORDS   AND   PHRASES,    HOW    CONSTRUED. 

Words  and  phrases  are  construed  according  to  the  context 
and  the  approved  usage  of  the  language;  but  technical  words 
and  phrases,  and  such  others  as  may  have  acquired  a  pe- 
culiar and  appropriate  meaning  in  law,  or  are  defined  in  the 


PRELIMINARY    PROVISIONS.  §  14 

succeeding   section,    are    to    be    construed    according    to    such 
peculiar   and   appropriate    meaning   or   definition. 

Hi.st<rry:      Enacted  March   21,   1S72. 


§  14.  CERTAIN  TERMS  DEFINED.  Words  used  in 
this  code  in  the  present  tense  include  the  future  as  well  as  the 
present;  words  used  «in  the  masculine  gender  include  the 
feminine  and  neuter;  the  singular  number  includes  the  plural, 
and  the  plural  the  singular;  the  word  person  includes  a  cor- 
poration as  well  as  a  natural  person;  county  includes  city 
and  county;  writing  includes  printing  and  typewriting;  oath 
includes  affirmation  or  declaration;  and  ["testify"]  every 
mode  of  oral  statement,  under  oath  or  affirmation,  is  em- 
braced by  the  term  "testify,"  and  ["depose"]  every  written 
one  in  the  term  "depose";  signature  or  subscription  includes 
mark,  when  the  person  cannot  write,  his  name  being  writ- 
ten near  it,  by  a  person  who  writes  his  own  name  as  a  wit- 
ness; provided,  that  when  a  signature  is  by  mark  it  must, 
in  order  that  the  same  may  be  acknowledged  or  may  serve 
as  the  signature  to  any  sworn  statement,  be  witnessed  by 
two  persons,  who  must  subscribe  their  own  names  as  wit- 
nesses thereto.  The  following  words  have  in  this  code  the 
signification  attached  to  them  in  this  section,  unless  other- 
wise apparent  from  the  context: 

1.  The  word  "property"  includes  property,  real  and  per- 
sonal; 

2.  The  words  "real  property"  are  coextensive  with  lands, 
tenements,   and   hereditaments; 

3.  The  words  "personal  property"  include  money,  goods, 
chattels,  things  in  action,  and  evidences  of  debt; 

4.  The  word  "month"  means  a  calendar  month,  unless  oth- 
erwise expressed; 

5.  The  word   "will"   includes  codicil; 


§§  15-19  CIVIL    CODE. 

6.  The  word  "section,"  wherever  hereinafter  employed,  re- 
fers to  a  section  of  this  code,  unless  some  other  code  or 
statute   is   expressly   mentioned. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  181;  Code  Commission  amendment.  Act 
March  19,  1901,  Stats,  and  Amdts.  1900-1,  p.  332;  unconstitu- 
tional, see  history,  §  4  ante;  amended  March  25,  1903,  Stats, 
and  Amdts.   1903,  p.   407. 

§15.  GOOD  FAITH,  WHAT  CONSTITUTES  [re- 
pealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.  182. 

§  16.  DEGREES  OF  CARE  AND  NEGLIGENCE  [re- 
pealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   182. 

§17.     DEGREES    OF    NEGLIGENCE    [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.  182. 

§  18.  NOTICE,  ACTUAL  AND  CONSTRUCTIVE.  No- 
tice is: 

1.  Actual — which  consists  in  express  information  of  a  fact; 
or, 

2.  Constructive — which    is    imputed    by    law. 

History:     Enacted  March  21,  1872. 

§19.     CONSTRUCTIVE  NOTICE   [WHEN  DEEMED]. 

Every  person  who  has  had  actual  notice  of  circumstances 
sufficient  to  put  a  prudent  man  upon  inquiry  as  to  a  par- 
ticular fact,  has  constructive  notice  of  the  fact  itself  in  all 
cases  in  which,  by  prosecuting  such  inquiry,  he  might  have 
learned   such  fact. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  182. 


PRELIMINARY   PROVISIONS.  §§  20,  21 

§  20.  EFFECT  OF  REPEAL.  No  statute,  law,  or  rule  is 
continued  in  force  because  it  is  consistent  with  the  pro- 
visions of  this  code  on  the  same  subject;  but  in  all  cases 
provided  for  by  this  code,  all  statutes,  laws,  and  rules  here- 
tofore in  force  in  this  state,  whether  consistent  or  not  with 
the  provisions  of  this  code,  unless  expressly  continued  in 
force  by  it,  are  repealed  or  abrogated. 

This  repeal  or  abrogation  does  not  revive  any  former  law 
heretofore  repealed,  nor  does  it  affect  any  right  already  ex- 
isting or  accrued,  or  any  action  or  proceeding  already  taken, 
except  as  in  this  code  provided. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  333,  held 
unconstitutional;   see   history,    §  4   ante. 

§21.  THIS  ACT,  HOW  CITED.  This  act,  whenever 
cited,  enumerated,  referred  to,  or  amended,  may  be  desig- 
nated simply  as  "The  Civil  Code,"  adding,  when  necessary, 
the   number   of   the    section. 

History:      Enacted  March   21,   1872. 


DIVISION  FIRST. 

Part   I.  Persons,  §§25-42. 

II.  Personal   Rights,   §§43-50. 

III.  Personal    Relations,    §§  55-276. 
IV.     Corporations,  §§283-653. 


11 


Div.I,Pt.I.]  MINORITY— COME^UTING.  §§25-27 


PART  I. 

PERSONS. 

j  25.     Minors,   who   are. 

§  26.     Periods   of   minority,   how   calculated. 

§  27.     Adults,    who  are. 

§  28.     Status  of  minors,  how  changed   [repealed]. 

§  29.     Unborn   child. 

§  30.  Persons  made  adults  by  other  states,  considered  as  such 
in   this   state,   when   domiciled   herein    [repealed]. 

§  31.  Minors  by  the  law  of  other  state  or  country,  how  con- 
sidered in  this  state  [repealed]. 

§  32.      Custody   of  minors. 

§  33.     Minors  cannot  give  a  delegation   of  power. 

§  34.     Contracts   of   minors    made;    disaffirmance. 

§  35.     When  minor  may  disaffirm. 

§  36.     Cannot    disaffirm   contract   for   necessaries. 

§  37.     Nor  certain  obligations. 

§  38.      Contracts  of  persons  without  understanding. 

§  39.      Contracts  by  persons  of  unsound  mind. 

§  40.     Power  of  persons  whose   incapacity  has   been   adjudged. 

§  41.  Minors  liable  for  wrongs,  but  not  liable  for  exemplary 
damages. 

§  42.     Minors    may    enforce    their   rights. 

§25.     MINORS,  WHO  ARE.     Minors  are: 

1.  Males  tinder  twenty-one  years  of  age; 

2.  Females  under  eighteen  years  of  age. 

History:      Enacted  March   21,   1872. 

§26.  PERIODS  OF  MINORITY,  HOW  CALCU- 
LATED. The  periods  specified  in  tl:e  preceding  section 
must  be  calculated  from  the  first  minute  of  the  day  on  which 
persons  are  born  to  the  same  minute  of  the  corresponding 
day  completing   the  period   of  minority. 

History:  Enacted  March  21,  1872;  amended  Code  Commission, 
Act  March  8,  1901,  Stats,  and  Amdts.  1900-1,  p.  333,  held  un- 
constitutional;   see    history,    §  4,    ante. 

§27.  ADULTS,  WHO  ARE.  All  other  persons  are 
adults. 

History:      Enacted  March   21,   1872. 

13 


§§28-34  CIVIL    CODE.  [Div.I. 

§28.  STATUS  OF  MINORS,  HOW  CHANGED  [re- 
pealed]. 

History:  Enacted  March  21,  1S72;  repealed  March  30,  ]S74, 
Code  Amdts.    1S73-4,    p.    1S2. 

§29.  UNBORN  CHILD.  A  child  conceived,  but  not  yet 
born,  is  to  be  deemed  an  existing  person,  so  far  as  may  be 
necessary  for  its  '  interests  in  the  event  of  its  subsequent 
birth. 

History:      Enacted  March   21,   1872. 

§30.  PERSONS  MADE  ADULTS  BY  OTHER 
STATES,  CONSIDERED  AS  SUCH  IN  THIS  STATE, 
WHEN  DOMICILED   HEREIN   [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code    Amdts.    1873-4,    p.    182. 

§31.  MINORS  BY  THE  LAWS  OF  OTHER  STATE 
OR  COUNTRY,  HOW  CONSIDERED  IN  THIS  STATE 

[repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code    Amdts.    1873-4,    p.    182. 

§32.  CUSTODY  OF  MINORS.  The  custody  of  minors 
and  persons  of  unsound  mind  is  regulated  by  Part  III  of 
this    division. 

History:      Enacted  March   21,   1872. 

§33.  MINORS  CANNOT  GIVE  A  DELEGATION 
OF  POWER.  A  minor  cannot  give  a  delegation  of  power, 
nor  under  the  age  of  eighteen,  make  a  contract  relating 
to  real  property,  or  any  interest  therein,  or  relating  to  any 
personal  property  not  in  his  immediate  possession  or  control. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code    Amdts.    1873-4,    p.    182. 

§34.  CONTRACTS  BY  MINORS  MADE;  DISAF- 
FIRMANCE. A  minor  may  make  any  other  contract  than 
as  above  specified,  in  the  same  manner  as  an  adult,  subject 
only   to   his   power   of   disaffirmance   under   the   provisions   of 

14 


Pt.I.]  DISAFFIRMANCE  §§  35-38 

this  title,  and  subject  to  the  provisions  of  the   titles  on   mar- 
riage,  and   on   master   and   servant.  / 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  183;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  333,  unconstitu- 
tional; see  history,    §  4,  ante. 

§35.  WHEN  MINORS  MAY  DISAFFIRM.  In  all  cases 
other  than  those  specified  in  sections  thirty-six  and  thirty- 
seven,  the  contract  of  a  minor,  if  made  whilst  he  is  under 
the  age  of  eighteen,  may  be  disaffirmed  by  the  minor  hiin- 
self,  either  before  his  majority  or  within  a  reasonable  time 
afterwards;  or,  in  case  of  his  death  within  that  period,  by 
his  heirs  or  personal  representatives;  and  if  the  contract  be 
made  by  the  minor  whilst  he  is  over  the  age  of  eighteen,  it 
may  be  disaffirmed  in  like  manner  upon  restormg  the  con- 
side'ration  to  the  party  from  whom  it  was  received,  or  pay- 
ing its   equivalent. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code    Amdts.    1873-4,   p.    183. 

§  36.  CANNOT  DISAFFIRM  CONTRACT  FOR  NEC- 
ESSARIES. A  minor  cannot  disaffirm  a  contract,  other- 
wise valid,  to  pay  the  reasonable  value  of  things  necessary 
for  his  support,  or  that  of  his  family,  entered  into  by  him 
when  not  imder  the  care  of  a  parent  or  guardian  able  to 
provide   for  him   or  them. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    183. 

§37.     NOR    CERTAIN    OBLIGATIONS.     A    minor    can- 
not disaffirm   an   obligation,   otherwise   valid,   entered  into  by 
him   under  the  express  authority  or  direction  of  a  statute. 
Histiiry:      Enacted  March   21,   1872. 

§38.  CONTRACTS  OF  PERSONS  WITHOUT  UN- 
DERSTANDING. A  person  entirely  without  understanding 
has  no  power  to  make  a  contract  of  any  kind,  but  he  is  liable 
for  the  reasonable  value  of  things  furnished  to  him  neces- 
sary for  his  support  or  the   support  of  his   family. 

15 


§§39-42  CIVIL    CODE.  [Div.I. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    183. 

§39.  CONTRACTS  BY  PERSONS  OF  UNSOUND 
MIND.  A  conveyance  or  other  contract  of  person  of  un- 
sound mind  but  not  entirely  without  understanding,  made  be- 
fore his  incapacity  has  been  judicially  determined,  is  subject 
to  rescission,  as  provided  in  the  chapter  on  rescission  of  this 
code. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,    p.   184. 

§40.  POWERS  OF  PERSONS  WHOSE  INCAPACITY 
HAS  BEEN  ADJUDGED.  After  his  incapacity  has  be?n 
judicially  determined,  a  person  of  insane  mind  can  make  no 
conveyance  or  other  contract,  nor  delegate  any  power  or 
waive  any  right,  until  his  restoration  to  capacity.  But  a  cer- 
tificate from  the  medical  superintendent  or  resident  phj'- 
sician  of  the  insane  asylum  to  which  such  person  may  have 
been  committed,  showing  that  such  person  had  been  dis- 
charged therefrom,  cured  and  restored  to  reason,  shall  estab- 
lish the  presumption  of  legal  capacity  in  such  person  from 
the  time  of  such  discharge. 

History:  Enacted  March  21,  1872;  amended  March  30,  1878, 
Code  Amdts.  1877-8,  p.  75;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  pp.  333-334,  held  un- 
constitutional; see   history,   §  4   ante. 

§41.  MINORS  LIABLE  FOR  WRONGS,  BUT  NOT 
LIABLE  FOR  EXEMPLARY  DAMAGES.  A  minor,  or 
person  of  unsound  mind,  of  whatever  degree,  is  civilly  liable 
for  a  wrong  done  by  him,  but  is  not  liable  in  exemplary 
damages  unless  at  the  time  of  the  act  he  was  capable  of 
knowing  that  it  was  wrongful. 

Histtiry:     Enacted  March   21,   1872. 

§42.     MINORS   MAY   ENFORCE  THEIR  RIGHTS.     A 

minor  may  enforce  his   rights  by  civil  action,  or  other  legal 
proceedings,  in  the  same  manner  as  a  person  of  full  age,  ex- 
cept that  a  guardian   must  conduct  the   same. 
History:     Enacted  March   21,  1872. 
16 


Pt.II.]  PERSONAL  RIGHTS — LIBEL.  §§43.45 


PART    II. 

PERSONAL    RIGHTS. 

§  43.  General  per.sonal   rights. 

§  44.  Defamation,    what   is. 

§  45.  Libel,   what   is. 

§  46.  Slander,  what  is. 

§  47.  What  communications  are  privileged. 

§  48.  Malice    not    inferred. 

§  49.  Protection   to  personal  relations. 

§  50.  Right  to  use  force. 

§  51.  Rights  of  citizens  in  places  of  public  accommodation  and 

amusement. 

§  52.  Damages    recoverable    for  violation    of   preceding   section. 

§  53.  Wrongful    refusal    to    admit    persons    to    places    of    public 

amusement. 

§  5  4.  Damages  recoverable  for  such  refusal. 

§43.  GENERAL  PERSONAL  RIGHTS.  Besides  the 
personal  rights  mentioned  or  recognized  in  the  Political  Code, 
every  person  has,  subject  to  the  qualifications  and  restric- 
tions provided  by  law^,  the  right  of  protection  from  bodily 
restraint  or  harm,  from  personal  insult,  from  defamation, 
and  from  injury  to  his  personal   relations. 

History:      Enacted  March   21,   1872. 

§44.  DEFAMATION,  WHAT.  Defamation  is  effected 
by: 

1.  Libel; 

2.  Slander. 

History:     Enacted  March   21,   1872. 

§  45.  LIBEL,  WHAT.  Libel  is  a  false  and"  unprivileged 
publication  by  writing,  printing,  picture,  effigy,  or  other  fixed 
representation  to  the  eye,  which  exposes  any  person  to 
hatred,  contempt,  ridicule,  or  obloquy,  or  which  causes  him 
to  be  shunned  or  avoided,  or  which  has  a  tendency  to  injure 
him  in   his   occupation. 

History:     Enacted  March   21,   1872. 

17 


§§46,47  CIVIL    CODE.  [Div.I. 

§46.  SLANDER,  WHAT.  Slander  is  a  false  and  un- 
privileged  publication   other   than   libel,   which: 

1.  Charges  any  person  with  crime,  or  with  having  been 
indicted,  convicted,  or  punished  for  crime; 

2.  Imputes  in  him  the  present  existence  of  an  infectious, 
contagious,  or  loathsome   disease; 

3.  Tends  directly  to  injure  him  in  respect  to  his  office,  pro- 
fession, trade,  or  business,  either  by  imputing  to  him  general 
disqualification  in  those  respects  which  the  office  or  other 
occupation  peculiarly  requires,  or  by  imputing  something 
with  reference  to  his  office,  profession,  trade,  or  business  that 
has  a  natural  tendency  to  lessen  its  profit; 

4.  Imputes  to  him  impotence  or  a  want  of  chastity;  or, 

5.  Which,  by  natural  consequence,  causes  actual  damage. 

Histi:ry:     Enacted  March   21,   1S72. 

§47.  PRIVILEGED  PUBLICATION,  IS  WHAT.  A 
privileged  publication  is  one  made — 

1.  In  the  proper  discharge  of  an  official  duty. 

2.  In  any  legislative  or  judicial  proceeding,  or  in  any  other 
official  proceeding  authorized  by  law. 

3.  In  a  communication,  without  malice,  to  a  person  inter- 
ested therein,  by  one  who  is  also  interested,  or  by  one  who 
stands  in  such  relation  to  the  person  interested  as  to  afford 
a  reasonable  ground  for  supposing  the  motive  for  the  com- 
munication innocent,  or  who  is'  requested  by  the  person  in- 
terested  to   give    the    information. 

4.  By  a  fair  and  true  report,  without  malice,  in  a  public 
journal,  of  a  judicial,  legislative,  or  other  public  official  pro- 
ceeding, or  of  anything  said  in  the  course  thereof,  or  of  a 
verified  charge  or  complaint  made  by  any  person  to  a  pub- 
lic official,  upon  which  complaint  a  warrant  shall  have  been 
issued. 

5.  By  a  fair  and  true  report,  without  malice,  of  the  pro- 
ceedings of  a  public  meeting,  if  such   meeting  was  lawfully 

18 


PtJT.]  MALICE— PERSONAL  RELATIONS.  §§48-50 

convened  for  a  lawful  purpose  and  open  to  the  public,  or 
the  publication  of  the  matter  complained  of  was  for  the 
public   benefit. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Anidts.  1873-4,  p.  184;  March  26,  1895,  Stats,  and  Amdts. 
1895,  p.  167;  amended  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  334,  held  unconstitutional;  see  his- 
tory,  §  4   ante. 


§  48.  MALICE  NOT  INFERRED.  In  the  cases  provided 
for  in  subdivisions  three,  four,  and  five,  of  the  preceding- 
section,  malice  is  not  inferred  from  the  communication  or 
publication. 

History:  Enacted  March  21,  1872;  amended  March  20,  1895, 
Stats,  and  Amdts.  1895,  p.  168.     In  force  March  26,  1895. 

§49.     PROTECTION     OF     PERSONAL    RELATIONS. 

The  rights  of  personal  relations  forbid: 

L  The  abduction  of  a  husband  from  his  wife,  or  of  a 
parent   from  his   child. 

2.  The  abduction  or  enticement  of  a  wife  from  her  hus- 
band, or  a  child  from  a  parent,  or  from  a  guardian  entitled 
to  its  custody. 

3.  The  seduction  of  a  wife,  daughter,  orphan  sister,  or 
servant. 

4.  Any  injury  to  a  servant  which  affects  his  ability  to  serve 
his   master. 

HLstory;  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  334,  held 
unconstitutional;  see  history,  §  4  ante;  amended  March  7,  1905, 
Stats,   and   Amdts.   1905,  p.   68. 

§  50.  RIGHT  TO  USE  FORCE.  Any  necessary  force 
may  be  used  to  protect  from  wrongful  injury  the  person  or 
property  of  oneself  [one's  self],  or  of  a  wife,  husband,  child, 

19 


§§51,52  CIVIL    CODE.  [Div.I. 

parent,  or  other  relative,  or  member  of  one's  family,  or  of  a 
ward,  servant,  master,  or  guest. 

History:      Enacted    March    21,    1872;    amended    March    30,    1874, 
Code   Amdts.    1873-4,    p.   184. 


§.51.  RIGHTS  OF  CITIZENS  IN  PLACES  OF  PUB- 
LIC ACCOMMODATION  OR  AMUSEMENT.  All  citi- 
zens within  the  jurisdiction  of  this  state  are  entitled  to  the 
full  and  equal  accommodations,  advantages,  facilities,  and 
privileges  of  inns,  restaurants,  hotels,  eating-houses,  barber- 
shops, bath-houses,  theaters,  skating-rinks,  and  all  other 
places  of  public  accommodation  or  amusement,  subject  only 
to  the  conditions  and  limitations  established  by  law  and  ap- 
plicable  alike   to   all   citizens. 

History:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  334,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.   553. 


§52.  DAMAGES  RECOVERABLE  FOR  VIOLATION 
OF  PRECEDING  SECTION.  Whoever  violates  any  of  the 
provisions  of  the  last  preceding  section,  by  denying  to  any 
citizen,  except  for  reasons  applicable  alike  to  every  race  or 
color,  the  full  accommodations,  advantages,  facilities,  and 
privileges  in  said  section  enumerated,  or  by  aiding  or  in- 
citing such  denial,  or  whoever  makes  any  discrimination, 
distinction,  or  restriction  on  account  of  color  or  race,  or 
except  for  good  cause,  applicable  alike  to  all  citizens  of  every 
color  or  race  whatever,  in  respect  to  the  admission  of  any 
citizen  to,  or  his  treatment  in,  any  inn,  hotel,  restaurant, 
eating-house,  barber-shop,  bath-house,  theater,  skating-rink, 
or  other  public  place  of  amusement  or  accommodation, 
whether  such  place  is  licensed  or  not,  or  whoever  aids  or 
incites    such    discrimination,    distinction,    or    restriction,    for 

20 


PtII]  REFUSAL  PLACE  AMUSEMENT.  §§53,54 

each  and  every  such  offense  is  liable  in  damages  in  an 
amount  not  less  than  fifty  dollars,  which  may  be  recovered 
in  an  action  at  law  brought  for  that  purpose. 

History:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  334,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,   p.    553. 

§53.  WRONGFUL  REFUSAL  TO  ADMIT  PERSON 
TO  PLACES  OF  PUBLIC  AMUSEMENT.  It  is  unlaw- 
ful for  any  corporation,  person,  or  association,  or  the  pro- 
prietor, lessee,  or  the  agents  of  either,  of  any  opera  house, 
theater,  melodeon,  museum,  circus,  caravan,  race-course,  fair, 
or  other  place  of  public  amusement  or  entertainment,  to  re- 
fuse admittance  to  any  person  over  the  age  of  twenty-one 
years,  who  presents  a  ticket  of  admission  acquired  by  pur- 
chase, or  who  tenders  the  price  thereof  for  such  ticket,  and 
who   demands   admission    to    such    place. 

[Who  may  be  excluded.]  Any  person  under  the  influence 
of  liquor,  or  who  is  guilty  of  boisterous  conduct,  or  any  per- 
son of  lewd  or  immoral  character,  may  be  excluded  from 
any  such  place  of  amusement. 

History:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  335,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.   554. 

§54.  DAMAGES  RECOVERABLE  FOR  SUCH  RE- 
FUSAL. Any  person  who  is  refused  admission  to  any  place 
of  amusement  contrary  to  the  provisions  of  the  last  preced- 
ing section,  is  entitled  to  recover  from  the  proprietor,  lessee, 
or  their  agents,  or  from  any  such  person,  corporation,  or 
association,  or  the  directors  thereof,  his  actual  damages,  and 
one    hundred    dollars    in    addition    thereto. 

History:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  335,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.   554. 

21 


§55  CIVIL    CODE.  [Div.I.Pt.III. 


PART  III. 
PERSONAL  RELATIONS. 


Title  I.  Marriage,    §§55-181. 

II.  Parent  and   Child,  §§  193-230. 

III.  Guardian   and    Ward,    §§236-258. 

IV.  Master  and  Servant,  §§264-276. 


TITLE   I. 
MARRIAGE. 

Chapter  I.     The    Contract   of   Marriage,   §§  55-80. 
II.     Divorce,  §§82-148. 
III.     Husband    and    Wife,    §§  155-181. 

CHAPTER  I. 
THE  CONTRACT  OF  MARRIAGE. 

Article  I.     Validity    of    Marriage,    §§  55-63. 

II.     Authentication  of  Marriage,  §§68-79^. 
III.     Judicial  Determination  of  Void  Marriages,  §80. 

'    ARTICLE  I. 

VALIDITY   OF    MARRIAGE. 

§  55.  What   constitutes    marriage. 

§  56.  Minors    capable    of   contracting    marriage. 

§  57.  Marriage,   liow   manifested   and  proved. 

§  58.  Certain   marriages   voidable    [repealed]. 

§  59.  Incompetency  of  parties  to. 

§  60.  Of  whites  and  negroes   or  mulattoes,   void. 

§  61.  Subsequent   marriage,  when   illegal   and  void. 

§  62.  Released   from  marriage  contract,   when. 

§  63.  Marriages  contracted  without  the  state. 

22 


Tit.I,ch.I,art.I.]  MARRIAGE— MINORS.  §§55-59 

§55.  WHAT  CONSTITUTES  MARRIAGE.  Marriage 
is  a  personal  relation  arising  out  of  a  civil  contract,  to  which 
the  consent  of  parties  capable  of  making  the  contract  is 
necessary. 

Consent  alone  will  not  constitute  marriage;  it  must  be 
followed  by  a  solemnization  authorized  by  this  code. 

History:  Enacted  March  21,  1S72;  amended  March  26,  1S95, 
Stats,  and  Amdts.  1S95,  p.  121. 

§56.  MINORS  CAPABLE  OF  CONTRACTING  MAR- 
RIAGE. Any  unmarried  male  of  the  age  of  eighteen  years 
or  upwards,  and  any  unmarried  female  of  the  age  of  fifteen 
years  or  upwards,  and  not  otherwise  disqualified,  are  capable 
of  consenting  to  and  consummating  marriage. 

History:      Enacted  March    21,   1S72. 


§57.  MARRIAGE,  HOW  MANIFESTED  AND 
PROVED.  Consent  to  marriage  and  solemnization  thereof 
may  be  proved  under  the  same  general  rules  of  evidence 
as    facts   are    proved   in    other   cases. 

History:  Enacted  March  21,  1872;  amended  March  26.  1S95, 
Stats,  and  Amdts.  1895,  p.  121. 

§58.     VOIDABLE  MARRIAGES  [repealed]. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  185;  repealed  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  335,  held  unconsti- 
tutional; see  history,  §  4  ante;  re-repealed  March  21,  1905,  Stats. 
and  Amdts.   1905,  p.  554. 


§59.  INCOMPETENCY  OF  PARTIES  TO.  Marriages 
between  parents  and  children,  ancestors  and  descendants  of 
every  degree,  and  between  brothers  and  sisters  of  the  half 
as  well  as  the  whole  blood,  and  between  uncles  and  nieces 

23 


§§60,61  CIVIL    CODi:..  [Div.I.Pt.IlI. 

or  aunts  and  nephews,  are  incestuous,  and  void  from  the 
beginning,  whether  the  relationship  is  legitimate  or  ille- 
gitimate. 

History:     Enactea  March   21,  1872. 


§60.  OF  WHITES  AND  NEGROES  OR  MULAT- 
TOES,  VOID.  All  marriages  of  white  persons  with  ne- 
groes, mongolians,  or  mulattoes  are  illegal  and  void. 

History:  Enacted  March  21,  1872;  amended  b5'  Code  Commis- 
sion (by  adding  ■word  "mongolian"),  Act  Marcli  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  335,  held  unconstitutional;  see  history,  §  4 
ante;  amended  March  21,  1905,  p.  554. 


§61.  SUBSEQUENT  MARRIAGE,  WHEN  ILLEGAL 
AND  VOID.  A  subsequent  marriage  contracted  by  any  per- 
son during  the  life  of  a  former  husband  or  wife  of  such 
person,  with  any  person  other  than  such  former  husband  or 
wife,   is  illegal  and  void   from   the   beginning,   unless: 

1.  The  former  marriage  has  been  annulled  or  dissolved. 
In  no  case  can  a  marriage  of  either  of  the  parties  during 
the  life  of  the  other,  be  valid  in  this  state,  if  contracted  with- 
in one  year  after  the  entry  of  an  interlocutory  decree  in  a 
proceeding  for   divorce. 

2.  Unless  such  former  husband  or  wife  is  absent,  and  not 
l<nown  to  such  person  to  be  living  for  the  space  of  five  suc- 
cessive years  immediately  preceding  such  subsequent  mar- 
riage, or  is  generally  reputed  or  believed  by  such  person  to 
be  dead  at  the  time  such  subsequent  marriage  was  con- 
tracted. In  either  of  which  cases  the  subsequent  marriage 
is  valid  until  its  nullity  is  adjudged  by  a  competent  tribunal. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  185;  Feb.  25,  1897,  Stats,  and  Amdts.  1897, 
p.  34;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  335,  unconstitutional;  see  history,  §  4 
ante;    amended   March    16,    1903,    Stats,    and   Amdts.    1903,  p.    176. 

24 


Tit. I, ch. I, art. I.]      RELEASE  FROM  MARRIAGE,  ETC.       §§62,63 

§62.  RELEASE  FROM  MARRIAGE  CONTRACT, 
WHEN.  Neither  party  to  a  contract  to  marry  is  bound  by 
a  promise  made  in  ignorance  of  the  other's  want  of  per- 
sonal chastity,  and  either  is  released  therefrom  by  unchaste 
conduct  on  the  part  of  the  other,  unless  both  parties  par- 
ticipate   therein. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1S74, 
Code  Amdt.s.    1873-4,  p.   1S5. 

§63.  MARRIAGES  CONTRACTED  WITHOUT  THE 
STATE.  All  marriages  contracted  without  this  state,  which 
would  be  valid  by  the  laws  of  the  country  in  which  the 
same  were  contracted,  are  valid  in  this   state. 

History:     Enacted  March    21,  1872. 


25. 


§§68.69  f^iviL  COOK.  fDiv.I.Pt.III. 


ARTICLE  II. 

AUTHENTICATION   OF   MARRIAGE. 

§  6S.  Procedure    required. 

§  69.  Marriage  license. 

§  69a.  Certificate  of   registry   of  marriage. 

§  70.  By  whom  marriages   may  be   celebrated. 

§  71.  No  particular   form   of  solemnization. 

§  72.  Requirements    by    persons    solemnizing    marriages. 

§  73.  Certificate  of  marriage. 

§  74.  Certificate  of  parties  and  recorder. 

§  75.  Declaration   of  marriage,   how  made    [repealed]. 

§  76.  Declaration  where  there  is  no  record. 

§  77.  Declaration   to   be    acknowledged   and   recorded. 

§  78.  Either  party   may  proceed   to   test  validity  of  marriage. 

§  79.  Marriage   •without   license. 

§  79a.  Recording   declaration   of   marriage. 

§68.  PROCEDURE  REQUIRED.  Marriage  must  be  li- 
censed, solemnized,  authenticated,  and  recorded  as  provided 
in  this  article;  but  non-compliance  with  its  provisions  by 
others  than  a  party  to  a  marriage  does  not  invalidate  it. 

History:  Enacted  March  21,  1872;  amended  March  26,  1895, 
Stats,  and  Amdts.  1895,  p.  121;  March  21,  1905,  Stats,  and  Amdts. 
1895,  p.   554. 

§69.  MARRIAGE  LICENSES.  All  persons  about  to  be 
joined  in  marriage  must  first  obtain  a  license  therefor,  from 
the  county  clerk  of  the  county  in  which  the  marriage  is 
to  be  celebrated,  which  license  must  show: 

1.  The    identity   of   the    parties. 

2.  Their  real  and   full   names,   and  places   of   residence. 

3.  Their  ages;   and 

4.  Whether  white,  mongolian,  negro   or  mulatto. 
[License  not  to  issue,  when.]     No  license  must  be  granted 

when  either  of  the  parties,  applicants  therefor,  is  an  im- 
becile, or  insane,  or  who  at  the  time  of  making  the  appli- 
cation,   or    proofs   herein   required,   for   said  license,  is  under 

26 


Tit.I,ch.I.art.^I.]      CERTIFICATE  OF  REGISTRY.  §  69a 

the  influence  of  any  intoxicating  liquor  or  narcotic  drug;  no 
license  must  be  issued  authorizing  the  marriage  of  a  white 
person  with  a  negro,  mulatto,  or  mongolian:  If  the  male 
is  under  the  age  of  twenty-one  years,  or  the  female  is  under 
the  age  of  eighteen  years,  and  such  person  has  not  been 
previously  married,  no  license  must  be  issued  by  the  county 
clerk  unless  the  consent  in  writing  of  the  parents  of  the  per- 
son under  age,  or  one  of  such  parents,  or  of  his  or  her 
guardian,  is  presented  to  him,  duly  verified  by  such  pa»rents, 
or  parent,  or  guardian;  and  such  consent  must  be  filed  by  the 
clerk,  and  he  must  state   such  facts  in  the  license. 

[Examination  on  oath.]  For  the  purpose  of  ascertaining 
all  the  facts  mentioned  or  required  in  this  section,  the  clerk, 
at  the  time  the  license  is  applied  for,  may,  if  he  deems  it 
necessary  in  order  to  satisfy  himself  as  to  matters  in  this 
section  enumerated,  examine  the  male  applicant  for  a  li- 
cense on  oath,  which  examination  shall  be  reduced  to  writing 
by  the   clerk,  and  subscribed  Ipy  him. 

[In  effect,  when.]  Sec.  2.  This  act  shall  be  in  force  and 
take  effect  from  and  after  its  passage. 

His<or>-:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  186;  April  6,  1880,  Code  Amdts.  1880  (C. 
C.  pt.),  p.  3;  amended  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  336,  held  unconstitutional;  see  his- 
tory. Kerr's  Cyc.  C.  C.  §  4;  amended  March  IS,  1905,  Stats,  and 
Amdts.  1905,  p.  182;  amended  March  15,  1907,  Stats,  and  Amdts. 
1907,   p.    305,   Kerr's   Stats,    and  Amdts.    1906-7,   p.    399. 

§69a.  CERTIFICATE  OF  REGISTRY  OF  MAR- 
RIAGE. All  persons  abotit  to  be  joined  in  marriage  must 
obtain  from  the  county  clerk  of  the  county  in  which  the 
marriage  is  to  be  celebrated,  in  addition  to  the  license  there- 
for provided  for  in  section  sixtj'-nine  of  the  Civil  Code,  a 
certificate  of  registry  as  provided  in  section  three  thousand 
and  seventy-six  of  the  Political  Code  which  shall  contain 
among  other  matters  as  near  as  can  be  ascertained,  the  race, 
color,  age,  name  and  surname,  birthplace,  residence    of    the 

27 


§§70,71  CIVIL    CODE.  JDiv.I,Pt.III. 

parties  to  be  married,  number  of  marriage  and  condition  of 
each,  whether  single,  widowed,  or  divorced,  the  occupation 
of  the  parties,  maiden  name  of  the  female,  if  previously 
married,  the  names  and  birthplaces  of  the  parents  of  each, 
and  the  maiden  name  of  the  mother  of  each,  which  said  cer- 
tificate of  registry  shall  be  filled  out  as  herein  provided  in 
the  presence  of  the  county  clerk  issuing  the  marriage  license 
and  shall  then  be  presented  to  the  person  performing  the 
ceremony  and  shall  be  filed  by  him  with  the  county  re- 
corder within  three  days  after  the  ceremony. 

Hi.story:       Enacted    April     26,     1*909.    Stats,    and    Amdt.s.     1909, 
p.   1093. 


§  70.  BY  WHOM  MARRIAGES  MAY  BE  CELE- 
BRATED. Marriage  may  be  solemnized  by  either  a  justice 
of  the  supreme  court,  justice  of  the  district  courts  of  ap- 
peal, judge  of  the  superior  court,  justice  of  the  peace,  judge 
of  any  police  court,  city  recorder,  priest  or  minister  of  the 
gospel  of  any  denomination. 

[Repealing  clause.]  Sec.  2.  All  acts  and  parts  of  acts  in 
conflict  with  the  provisions  of  this  act  are  hereby  repealed. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  p.  4;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  336,  held  un- 
constitutional, see  history,  §  69  ante;  amended  March  20,  1903, 
Stats,  and  Amdts.  1903,  p.  255;  amended  March  1,  1907,  Stats. 
and  Amdts.  1907,  p.  80,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  400. 
In  effect  immediately. 


§71.  NO  PARTICULAR  FORM  OF  SOLEMNIZA- 
TION. No  particular  form  for  the  ceremony  of  marriage 
is  required,  but  the  parties  must  declare,  in  the  presence  of 
the  person  solemnizing  the  marriage,  that  they  take  each 
other  as  husband  and  wife. 

History:     Enacted  March   21,  1872. 

28 


Tit. I, ch. I, art. II.]    SOLEMNIZATION— CERTIFICATES.     §§72-75 

§72.  REQUIREMENTS  BY  PERSONS  SOLEMNIZ- 
ING MARRIAGE.  The  person  solemnizing  a  marriage 
must  first  require  the  presentation  of  the  marriage  license; 
and  if  he  has  any  reason  to  doubt  the  correctness  of  its 
statement  of  facts,  he  must  first  satisfy  himself  of  its  correct- 
ness, and  for  that  purpose  he  may  administer  oaths  and  ex- 
amine the  parties  and  witnesses  in  like  manner  as  the  county 
clerk  does  before  issuing  the  license. 

History:  Enacted  March  21,  1872;  amended  March  SO,  1874, 
Code   Amdts.    1873-4,   p.    186. 


§73.  CERTIFICATES  OF  MARRIAGE.  The  person 
solemnizing  a  marriage  must  make,  sign,  and  indorse  upon, 
or  attach  to,  the  license,  a  certificate,  showing: 

1.  The  fact,  time,  and  place  of  solemnization;  and, 

2.  The  names  and  places  of  residence  of  one  or  more  wit- 
nesses to  the  ceremony. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,  p.    187. 


§  74.     CERTIFICATE  TO  PARTIES  AND  RECORDER. 

He  must,  at  the  request  of,  and  for  either  party,  make  a  certi- 
fied copy  of  the  license  and  certificate,  and  file  the  originals 
with  the  county  recorder  within  thirty  days  after  the  mar- 
riage. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  336,  held 
unconstitutional;   see  history,    §4  ante. 


§75.     DECLARATION  OF  MARRIAGE,  HOW  MADE. 

[Repealed.] 

History:     Enacted    March    21,    1872;    repealed    March    26,    1895, 
Stats,   and  Amdts.   1895,  p.   121. 

29 


§§76-79  CIVIL    CODE.  [Div.I.Pt.III. 

§76.  DECLARATION  WHERE  THERE  IS  NO  REC- 
ORD. If  no  record  of  the  solemnization  of  a  marriage  here- 
tofore contracted,  be  known  to  exist,  the  parties  may  join  in 
a  written  declaration  of  such  marriage,  substantially  show- 
ing: 

1.  The   names,   ages,   and   residences   of  the   parties. 

2.  The  fact  of  marriage. 

3.  That  no  record  of  such  marriage  is  known  to  exist. 
Such  declaration  must  be  subscribed  by  the  parties  and  at- 
tested by  at  least  three  witnesses. 

Hiistory:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code   Amdts.    1873-4,   p.    187. 

§77.     DECLARATION     TO     BE     ACKNOWLEDGED 

AND  RECORDED.  Declarations  of  marriage  must  be 
acknowledged  and  recorded  in  like  manner  as  grants  of  real 
property. 

History:     Enacted  March   21,  1S72. 

§78.  EITHER  PARTY  MAY  PROCEED  TO  TEST 
VALIDITY  OF  MARRIAGE.  If  either  party  to  any  mar- 
riage denies  the  same,  or  refuses  to  join  in  a  declaration 
thereof,  the  other  may  proceed,  by  action  in  the  superior 
court,  to  have  the  validity  of  the  marriage  determined  and 
declared. 

History:  Enacted  March  21,  1872;  amended  to  make  it  con- 
form to  new  constitution,  Feb.  15,  1883^  Stats,  and  Amdts.  1883, 
p.    4. 

§79.  MARRIAGE  WITHOUT  LICENSE.  When  un- 
married persons,  not  minors,  have  been  .living  together  as 
man  and  wife,  they  may,  without  a  license,  be  married  by 
any  clergyman.  A  certificate  of  such  marriage  must,  by  the 
clergyman,  be  made  and  delivered  to  the  parties,  and  re- 
corded upon  the  records  of  the  church  of  which  the  clergy- 
man is  a  representative.     No  other  record  need  be  made. 

History:     Enacted  Feb.  3,  187S,  Code  Amdts.   1S77-S,  p.  75. 

30 


Tit. T, ell. I, art. II.]    DECLARATION   OF   MARRIAGE.  § /Qa 

§  79a.     RECORDING  DECLARATION  OF  MARRIAGE. 

The  provisions  of  this  chapter,  so  far  as  they  relate  to  the 
solemnizing  of  marriages,  are  not  applicable  to  members  of 
any  particular  religious  denomination  having,  as  such,  any 
peculiar  mode  of  entering  the  marriage  relation;  but  such 
marriages  must  be  declared,  as  provided  in  section  seventy- 
six,  and  be  acknowledged  and  recorded,  as  provided  in  sec- 
tion seventy-seven.  Where  a  marriage  is  declared  as  pro- 
vided in  said  section  seventy-six,  the  husband  must,  file  said 
declaration  with  the  county  recorder  within  thirty  days  after 
such  marriage,  and  upon  receiving  the  same  the  county  re- 
corder must  record  the  same;  and  if  the  husband  fails  to 
make  such  declaration  and  file  the  same  for  record,  as  here- 
in provided,  he  is  liable  to  the  same  penalties  as  any  person 
authorized  to  solemnize  marriages,  who  fails  to  make  the 
return  of  such  solemnization  as  provided  by  law. 

History:  Enacted  March  27,  1897,  Stats,  and  Amdts.  1897,  p. 
1S6;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  3.36,  held  unconstitutional;  see  history,  §  4 
ante;  amended  and  renumbered  79a  instead  of  l^Vz,  March  21, 
1905,  Stats,  and  Amdts.   1905,  p.   555. 


31 


§§80,82  CIVIL    CODE.  [Div.I.Pt.III. 

ARTICLE  III. 

JUDICIAL  DETERMINATION   OF   VOID   MARRIAGE. 
§  80.     Action  to  have  marriage   declared  void. 

§80.  ACTION  TO  HAVE  MARRIAGE  DECLARED 
VOID.  Either  party  to  an  incestuous  or  void  marriage  may 
proceed,  by  action  in  the  superior  court,  to  have  the  same 
so  declared. 

Hi.story:  Enacted  March  15,  1876,  Code  Amdts.  1875-6,  p.  69; 
amended  (changing  from  former  district  to  superior  court) 
April  6,  1S80,  Code  Amdts.   (C.  C.  pt.),  p.   4. 

CHAPTER  II. 

DIVORCE. 

Article     I.  Nullity,  §§82-86. 

II.  Dissolution,  §§90-107. 

III.  Causes    for    Denying   Divorce,    §§  111-132. 

IV.  General    Provisions,    §§  136-148. 

ARTICLE  I. 

NULLITY. 

§  82.  Causes  for  annulling  marriage. 

§  83.  Actions   therefor,   when   to   be   commenced. 

§  84.  Children   of   annulled   marriage. 

§  85.  Custody  of  children. 

§  86.  Effect  of  judgment  of  nullity. 

§82.     CAUSES    FOR    ANNULLING    MARRIAGES.     A 

marriage   may  be  annulled   for   any  of  the   following  causes, 
existing  at  the  time  of  the  marriage: 

1.  That  the  party  in  whose  behalf  it  is  sought  to  have  the 
marriage  annulled  was  under  the  age  of  legal  consent,  and 

32 


Tit. I, ch. II, art. I.]      ANNULLING  MARRIAGE.  §83 

such  marriage  was  contracted  without  the  consent  of  his  or 
her  parents  or  guardian  ,or  person  having  charge  of  him  or 
her;  unless,  after  attaining  the  age  of  consent,  such  party  for 
any  time  freely  cohabited  with  the  other  as  husband  or  wife. 

2.  That  the  former  husband  or  wife  of  either  party  was 
living,  and  the  marriage  with  such  former  husband  or  wife 
was  then  in  force. 

3.  That  either  party  was  of  unsound  mind,  unless  such 
party,  after  coming  to  reason,  freely  cohabit  with  the  other 
as  husband  or  wife. 

4.  That  the  consent  of  either  party  was  obtained  by  fraud, 
unless  such  party  afterwards,  with  full  knowledge  of  the  facts 
constituting  the  fraud,  freely  cohabited  with  the  other  as 
husband  or  wife. 

5.  That  the  consent  of  either  party  was  obtained  by  force, 
unless  such  party  afterwards  freely  cohabited  with  the  other 
as  husband  or  wife. 

6.  That  either  party  was,  at  the  time  of  marriage,  physical- 
ly incapable  of  entering  into  the  marriage  state,  and  such  in- 
capacity continues,  and  appears  to  be  incurable. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   pp.    187-188. 

§83.  ACTIONS  THEREFOR,  WHEN  COMMENCED. 
An  action  to  obtain  a  decree  of  nullity  of  marriage,  for 
causes  mentioned  in  the  preceding  section,  must  be  com- 
menced within  the  periods  and  by  the  parties,  as  follows: 

1.  For  causes  mentioned  in  subdivision  one:  by  the  party 
to  the  marriage  who  was  married  under  the  age  of  legal  con- 
sent, within  four  years  after  arriving  at  the  age  of  consent; 
or  by  a  parent,  guardian,  or  other  person  having  charge  of 
such  nonaged  male  or  female,  at  any  time  before  such  mar- 
ried minor  has  arrived  at  the  age  of  legal  consent. 

2.  For  causes  mentioned  in  subdivision  two:  by  either 
party  during  the  life  of  the  other,  or  by  such  former  hus- 
band or  wife. 

-  33 


§§84-86  CIVIL    CODE.  [Div.I,Pt.III. 

3.  For  causes  mentioned  in  subdivision  three:  by  the  part}' 
injured,  or  relative  or  guardian  of  the  party  of  unsound 
mind,  at  any  time  before  the  death  of  either  party. 

4.  For  causes  mentioned  in  subdivision  four:  by  the  party 
injured,  w^ithin  four  years  after  the  discovery  of  the  facts 
constituting  the  fraud. 

5.  For  causes  mentioned  in  subdivision  five:  by  the  injured 
party,  within  four  years  after  the  marriage. 

6.  For  causes  mentioned  in  subdivision  six:  by  the  injured 
party,  within  four  years  after  the  marriage. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   pp.    188-189. 

§84.     CHILDREN    OF    ANNULLED    MARRIAGE.     A 

judgment  of  nullity  of  marriage  does  not  affect  the  legiti- 
macy of  children  begotten  before  the  judgment. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  337, 
held  unconstitutional;  see  liistory,  §  4  ante;  amended  March  21, 
1905,   p.    555. 

§85.  CUSTODY  OF  CHILDREN.  The  court  must 
award  the  custody  of  the  children  of  a  marriage  annulled  on 
the  ground  of  fraud  or  force  to  the  innocent  parent,  and  may 
also  provide  for  their  education  and  maintenance  out  of  the 
property  of  the  guilty  party. 

History:     Enacted  March   21,  1872. 

§86.     EFFECT     OF     JUDGMENT    OF    NULLITY.     A 

judgment  of  nullity  of  marriage  rendered  is  conclusive  only 
as  against  the  parties  to  the  action  and  those  claiming  under 
them. 

History:     Enacted  March   21,  1872. 


34 


Tit.I,ch.II,art.II.]    DIVORCE— EFFECT  OF.  §§90,91 


ARTICLE  II. 
DISSOLUTION    OF    MARRIAGE. 

§     90.  Marriage,    how    dissolved. 

§     91.  Effect  of  divorce. 

§     92.  Causes  for  divorce. 

§     93.  Adultery  defined. 

§     94.  Extreme   cruelty,  what. 

§    95.  Desertion,   what. 

§     96.  Desertion,  how  manifested. 

§     97.  In   case    of   stratagem    or   fraud,    who   commits   desertion. 

§  98.  In  case  of  cruelty,  where  one  party  leaves  the  other,  who 
commits   desertion. 

§    99.  Separation  by  consent  not  desertion. 

§  100.  Absence  becomes  desertion,  when. 

§  101.  Consent   to   separate   revocable. 

§  102.  Desertion,  how  cured. 

§  10.3.  Wife  must  abide  by  husband's  selection  of  home,  or  it  is 
desertion  on  her  part. 

§  101.  If  place  is  unfit,  and  wife  refuses  to  conform,  it  is  de- 
sertion by  the  husband. 

§  105.  Wilful  neglect,  what. 

§  106.  Habitual   intemperance,    what. 

§  107.  Habitual  Intemperance  for  one  year. 

§90.  MARRIAGE,  HOW  DISSOLVED.  Marriage  is 
dissolved  only: 

1.  By  death  of  one  of  the  parties;  or, 

2.  B}'  the  judgment  of  a  court  of  competent  jurisdiction 
decreeing  a  divorce  of  the  parties. 

History:  Enacted  March  21,  1872;  amended  March  30,  187  4, 
Code   Amdts.    1873-4,   p.    189. 

§9L  EFFECT  OF  DIVORCE.  The  efifect  of  a  judg- 
ment decreeing  a  divorce,  is  to  restore  the  parties  to  the 
state  of  unmarried  persons. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    189. 

35 


§§92-96  CIVIL   CODE.  [Div.I.Pt.III. 

§92.  CAUSES  FOR  DIVORCE.  Divorces  may  l)e 
granted  for  any  of  the  following  causes: 

1.  Adultery. 

2.  Extreme  criieltj^ 

3.  Wilful  desertion. 

4.  Wilful  neglect. 

5.  Habitual  intemperance. 

6.  Conviction  of  felony. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Anidt-s.   lS7.'?-4,  p.   189. 

§93.  ADULTERY  DEFINED.  Adultery  is  the  volun- 
tary sexual  intercourse  of  a  married  person  with  a  person 
other  than  the  offender's  husband  or  wife. 

History:     Enacted  March   21,  1872. 

§  94.  EXTREME  CRUELTY,  WHAT.  Extreme  cruelty 
is  the  wrongful  infliction  of  grievous  bodily  injury,  or  griev- 
ous mental  suffering,  upon  the  other  by  one  party  to  the 
marriage. 

History;  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  337, 
held  unconstitutional;  see  liistory,  §  4  ante;  amended  March  7, 
1905,   Stats,    and  Amdts.    1905,   p.   75. 

§95.  DESERTION,  WHAT.  Wilful  desertion  is  the 
voluntary  separation  of  one  of  the  married  parties  from  the 
other  with  intent  to  desert. 

History:     Enacted  March   21,   1872.  ' 

§96.  DESERTION,  HOW  MANIFESTED.  Persistem 
refusal  to  have  reasonable  matrimonial  intercourse  as  hus- 
band and  wife,  when  health  or  physical  condition  does  not 
make  such  refusal  reasonably  necessary,  or  the  refusal  of 
either  part}-  to  dwell  in  the  same  house  with  the  other  part}', 
when  there  is  no  just  cause  for  such  refusal,  is  desertion. 

Hi.story:     Enacted  March   21,  1872. 
36 


Tit. I, ch. II, art. II.]    STRATAGEM,   ETC.— CRUELTY.        §§97-101 

§97.  IN  CASE  OF  STRATAGEM  OR  FRAUD,  WHO 
COMMITS  DESERTION.  When  one  party  is  induced,  by 
the  stratagem  or  fraud  of  the  other  party,  to  leave  the  fam- 
ily dwelling-place,  or  to  be  absent,  and  during  such  absence 
the  ofifending  party  departs  with  intent  to  desert  the  other,  it 
is  desertion  by  the  party  committing  the  stratagem  or  fraud, 
and  not  by  the  other. 

History:     Enacted  March   21,  1S72. 

§98.  IN  CASE  OF  CRUELTY,  WHERE  ONE  PARTY 
LEAVES  THE  OTHER,  WHO  COMMITS  DESERTION. 

Departure  or  absence  of  one  party  from  the  family  dwelling- 
place,  caused  by  cruelty  or  by  threats  of  bodily  harm  from 
which  danger  would  be  reasonably  apprehended  from  the 
other,  is  not  desertion  by  the  absent  party,  but  it  is  desertion 
by  the  other  party. 

History:     Enacted  March   21,  1872. 

§99.  SEPARATION  BY  CONSENT  NOT  DESER- 
TION. Separation  by  consent,  with  or  without  the  under- 
standing that  one  of  the  parties  will  apply  for  a  divorce,  is 
not  desertion. 

History:     Enacted  March   21,  1872. 

§  100.     ABSENCE    BECOMES     DESERTION,    WHEN. 

Absence  or  separation,  proper  in  itself,  becomes  desertion 
whenever  the  intent  to  desert  is  fixed  during  such  absence 
or  separation. 

History:  Enacted  Marcli  21,  1S72;  amended  MarclT  .30,  1874, 
Code  Amdt.s.   1873-4,  p.   189. 

§  101.     CONSENT  TO  SEPARATE  REVOCABLE.    Con- 
sent to  a  separation   is  a  revocable  act,  and    if    one    of    the 
parties  afterwards,  in  good  faith,  seeks  a  reconciliation  and 
restoration,  but  the  other  refuses  it,  such  refusal  is  desertion. 
History:     Enacted  March  21,  1872. 


130103 


§§102-105  CIVIL    CODE.  [Div.I.Pt.III. 

§  102.  DESERTION,  HOW  CURED.  If  one  party  de- 
serts the  other,  and  before  the  expiration  of  the  statutory 
period  required  to  make  the  desertion  a  cause  of  divorce,  re- 
turns and  offers  in  good  faith  to  fulfil  the  marriage  contract, 
and  solicits  condonation,  the  desertion  is  cured.  If  the  other 
party  refuse  such  offer  and  condonation,  the  refusal  shall  be 
deemed  and  treated  as  desertion  by  such  party  from  the 
time  of  refusal. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  190. 


§  103.  WIFE  MUST  ABIDE  BY  HUSBAND'S  SELEC- 
TION OF  HOME,  OR  IT  IS  DESERTION  ON  HER 
PART.  The  husband  may  choose  any  reasonable  place  or 
mode  of  living,  and  if  the  wife  does  not  conform  thereto,  it 
is  desertion. 

History:     Enacted  March   21,  1872. 


§  104.  IF  THE  PLACE  IS  UNFIT,  AND  WIFE  RE- 
FUSES TO  CONFORM,  IT  IS  DESERTION  BY  THE 
HUSBAND.  If  the  place  or  mode  of  living  selected  by  the 
husband  is  unreasonable  and  grossly  unfit,  and  the  wife  does 
not  conform  thereto,  it  is  desertion  on  the  part  of  the  hus- 
band from  the  time  her  reasonable  objections  are  made 
known  to  him. 

Hi.story:     Enacted  March   21,  1S72. 


§  105.  WILFUL  NEGLECT,  WHAT.  Wilful  neglect  is 
the  neglect  of  the  husband  to  provide  for  his  wife  the  com- 
mon necessaries  of  life,  he  having  the  ability  to  do  so;  or  it 
is  the  failure  to  do  so  by  reason  of  idleness,  profligacy,  or 
dissipation. 

History:     Enacted  March   21,  1S72. 
38 


Tit.I.ch.II.art.IL]    HABITUAL  INTEMPERANCE.  §§  106,  107 

§  106.  HABITUAL  INTEMPERANCE,  WHAT.  Hab- 
itual intemperance  is  that  degree  of  intemperance  from  the 
use  of  intoxicating  drinks  which  disqualifies  the  person  a 
great  portion  of  the  time  from  properly  attending  to  busi- 
ness, or  which-  would  reasonably  inflict  a  course  of  great 
mental  anguish  upon  the  innocent  party. 

History:  Enacted  March  21,  1S72;  amended  by  Code  Commis- 
sion, Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  337,  held 
unconstitutional;   see   history,   §4  ante. 

§  107.  HABITUAL  INTEMPERANCE  FOR  ONE 
YEAR.  Wilful  desertion,  wilful  neglect,  or  habitual  intem- 
perance must  continue  for  o.ne  year  before  either  is  a  ground 
for  divorce. 

History:      Enacted  Marcli    21,  1S72. 


39 


§111  CIVIL    CODE.  [Div.I,Pt.III. 


*  ARTICLE  III. 

*  CAUSES    FOR    DENYING    DIVORCE. 

§  111.  Divorces    denied,    on   sliowing   wliat. 

§  112.  Connivance,    what. 

§  113.  Corrupt  consent,  how   manifested. 

§  114.  Collusion,  what. 

§  115.  Condonation,    what. 

§  IIG.  Requisites   of  condonation. 

§  117.  Condonation  implies  what. 

§  lis.  Evidence   of   condonation. 

§  119.  Can    only   be  made,  when. 

§  120.  Concealment  of  facts  in  certain  cases  maltes  condonation 

void. 

§  121.  Condonation,  how  revoked. 

§  122.  Recrimination,   what. 

§  123.  Condonation,  when  to  bar  defense. 

§  124.  Divorce,    when    denied. 

§  125.  Lapse    of    time    establishes    certain    presumption. 

§  126.  Presumption   may   be   rebutted. 

§  127.  Limitation   of  time. 

§  128.  Actions    in    divorce    case.       [Plaintiff    must    be    resident. 

Cross-complaint  by   nonresident.] 

§129.  Proof    of    actual    residence    required.       Presumptions    do 

not  apply. 

§  130.  Divorce   by    default,    etc.      [Not   granted.] 

§  131.  [Court     must     file     decision.]       Interlocutory     judgment, 

wlien. 

§  132.  Final  judgment,  after  one  year. 

§111.     DIVORCES  DENIED,  ON    SHOWING    WHAT. 

Divorces  must  be  denied  upon  showing: 

1.  Connivance;  or, 

2.  Collusion;  or, 

3.  Condonation;  or, 

4.  Recrimination;  or, 

5.  Limitation  and  lapse  of  time. 

History:     Enacted  March   21,  1S72. 

40 


Tit.I,ch.II,art.III.]CONNIVANCE   AND  COLLUSION.    §§  112-117 

§112.  CONNIVANCE,  WHAT.  Connivance  is  the  cor- 
rupt consent  of  one  party  to  the  commission  of  the  acts  of 
the  other,  constituting  the  cause  of  divorce. 

History:      Enacted  March   21,  1872. 

§113.     CORRUPT     CONSENT,     HOW    MANIFESTED. 

Corrupt  consent  is  manifested  by  passive  permission,  with  in- 
tent to  connive  at  or  actively  procure  the  commission  of  the 
acts  complained  of. 

History:      Enacted  March   21,  1S72. 

§  114.  COLLUSION,  WHAT.  Colhision  is  an  agreement 
between  husband  and  wife  that  one  of  them  shall  commit,  or 
appear  to  have  committed,  or  to  be  represented  in  court  as 
having  committed,  acts  constituting  a  cause  of  divorce,  for 
the  purpose  of  enabling  the  other  to  obtain  a  divorce. 
History:     Enacted  March   21,  1872. 

§115.  CONDONATION,  WHAT.  Condonation  is  the 
conditional  forgiveness  of  a  matrimonial  offense  constituting 
a  cause  of  divorce. 

History:     Enacted  March   21,  1S72. 

§116.  REQUISITES  TO  CONDONATION.  The  fol- 
lowing requirements  are  necessary  to  condonation: 

1.  A  knowledge  on  the  part  of  the  condoner  of  the  facts 
constituting  the  cause  of  divorce; 

2.  Reconciliation  and  remission  of  the  offense  by  the  in- 
jured party; 

3.  Restoration  of  the  offending  party  to  all  marital  rights. 

History:      Enacted  March   21,  1S72. 

§117.  CONDONATION  IMPLIES  WHAT.  Condona- 
tion implies  a  condition  subsequent;  that  the  forgiving  party 
must  be  treated  with  conjugal  kindness. 

History:     Enacted  March   21,  1872. 

41 


§§118-121  CIVIL    CODE.  [Div.I,Pt.IIl. 

§118.  EVIDENCE  OF  CONDONATION.  Where  the 
cause  of  divorce  consists  of  a  course  of  offensive  conduct,  or 
arises,  in  cases  of  cruelty,  from  excessive  acts  of  ill-treatment 
which  may,  aggregately,  constitute  the  oflfense,  cohabitation, 
or  passive  endurance,  or  conjugal  kindness,  shall  not  be  evi- 
dence of  condonation  of  any  of  the  acts  constituting  such 
cause,  unless  accompanied  bj'  an  express  agreement  to  con- 
done. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   190. 

§119.  CAN  ONLY  BE  MADE,  WHEN.  In  cases  men- 
tioned in  the  last  section,  condonation  can  be  made  only 
after  the  cause  of  divorce  has  become  complete,  as  to  the 
acts  complained  of. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.   190. 

§  120.  CONCEALMENT  OF  FACTS  IN  CERTAIN 
CASES  MAKES  CONDONATION  VOID.  A  fraudulent 
concealment  by  the  condonee  of  facts  constituting  a  different 
cause  of  divorce  from  the  one  condoned,  and  existing  at  the 
time  of  condonation,  avoids  such  condonation. 

Hiistory:     Enacted  March    21,  1872. 

§  121.  CONDONATION,  HOW  REVOKED.  Condona- 
tion is  revoked  and  the  original  cause  of  divorce  revived: 

1.  When  the  condonee  commits  acts  constituting  a  like  or 
other  cause  of  divorce;  or, 

2.  When  the  condonee  is  guilty  of  great  conjugal  unkind- 
ness,  not  amounting  to  a  cause  of  divorce,  but  sufficiently 
habitual  and  gross  to  show  that  the  conditions  of  condona- 
tion had  not  been  accepted  in  good  faith,  or  not  fulfilled. 

History:     Enacted  March  21,  1872. 

42 


Tit.I,ch.II,art.III.]       CONDONATION,  REVOKING.         §§122-125 

§  122.  RECRIMINATION,  WHAT.  Recrimination  is  a 
showing  by  the  defendant  of  any  cause  of  divorce  against 
the  plaintiff,  in  bar  of  the  plaintiff's  cause  of  divorce. 

History:     Enacted  March   21,  1S72. 

§  123.     CONDONATION,  WHEN  TO   BAR  DEFENSE. 

Condonation  of  a  cause  of  divorce,  shown  in  the  answer  as 
a  recriminatory  defense,  is  a  bar  to  such  defense,  unless  the 
condonation  be  revoked,  as  provided  in  section  one  hundred 
and  twenty-one,  or  two  years  have  elapsed  after  the  con- 
donation, and  before  the  accruing  or  completion  of  the 
cause   of   divorce   against  which   tlie   recrimination   is   shown. 

History;  Enacted  March  21,  1S72;  amended  March  30,  1S74, 
Code   Amdts.    1S73-4,    pp.   190-191. 

§  124.  DIVORCE,  WHEN  DENIED.  A  divorce  must  be 
denied: 

1.  When  the  cause  is  adultery  and  the  action  is  not  com- 
menced within  two  years  after  the  commission  of  the  act  of 
adultery,  or  after  its  discovery  by  the  injured  party;  or, 

2.  When  the  cause  is  conviction  of  felony,  and  the  action 
is  not  commenced  before  the  expiration  of  two  years  after  a 
pardon,  or  the  termination  of  the  period  of  sentence. 

3.  In  all  other  cases  when  there  is  an  unreasonable  lapse 
of  time  before  the  commencement  of  the  action. 

Historj-:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code    Amdts.    1873-4,    p.    191. 

§  125.     LAPSE    OF    TIME    ESTABLISHES    CERTAIN 

PRESUMPTIONS.  Unreasonable  lapse  of  time  is  such  a 
delay  in  commencing  the  action  as  establishes  the  presump- 
tion that  there  has  been  connivance,  col.lusion,  or  condona- 
tion of  the  ofifense,  or  full  acquiescence  in  the  same,  with  in- 
tent to  continue  the  marriage  relation  [,]  notwithstanding  the 
commission  of  such  offense. 

Hi.story:     Enacted   March   21,   1872. 
43 


§§  126-129  CIVIL  CODE.  [Div.T.Pt.III. 

§126.     PRESUMPTIONS   MAY   BE   REBUTTED.     The 

presumptions  arising  from  lapse  of  time  may  be  rebutted  by 
showing  reasonable  grounds  for  the  delay  in  commencing  the 
action. 

HLstory:     Enacted  March   21,  1872. 

§  127.  LIMITATION  OF  TIME.  There  are  no  limita- 
tions of  time  for  commencing  actions  for  divorce,  except  such 
as  are  contained  in  section  one  hundred  and  twenty-four. 

History:     Enacted  March   21,  1872. 

§  128.  ACTIONS  IN  DIVORCE  CASES.  [PLAINTIFF 
MUST  BE  RESIDENT.  CROSS-COMPLAINT  BY 
NON-RESIDENT.]  A  divorce  must  not  be  granted  unless 
the  plaintif?  has  been  a  resident  of  the  state  one  year,  and  of 
the  county  in  which  the  action  is  brought  three  months,  next 
preceding  the  commencement  of  the  action;  provided,  that  a 
cross-complainant  in  an  action  for  divorce  need  not  be  or 
have  been  a  resident  of  the  state  or  of  the  county  in  which 
the  action  is  brought  or  pending  in  order  to  entitle  such 
cross-complainant  to  a  divorce  in  said  action;  and  provided, 
further,  that  in  an  action  for  divorce  a  cross-complainant 
must  personally  verify  the  cross-complaint. 

HLstory:  Enacted  March  21,  1872;  amended  March  10,  1891, 
Stats,  and  Amdts.  1891,  p.  52;  April  6,  1911,  Stats,  and  Amdts. 
1911,   p.    686. 

§  129.  PROOF  OF  ACTUAL  RESIDENCE  REQUIRED. 
PRESUMPTIONS  DO  NOT  APPLY.  In  actions  for  di- 
vorce the  presumption  of  law,  that  the  domicile  of  the  hus- 
band is  the  domicile  of  the  wife,  does  not  apply.  After  sep- 
aration, each  may  have  a  separate  domicile,  depending  for 
proof  upon  actual  residence,  and  not  upon  legal  presump- 
tions. 

History:     Enacted  March   21,   1872. 

44 


Tit.I,ch.II,art.III.]      INTERLOCUTORY  JUDGMENT.   §§  130-132 

§130.  DIVORCE  BY  DEFAULT,  ETC.  [NOT 
GRANTED].  No  divorce  can  be  granted  upon  the  default 
of  the  defendant,  or  upon  the  uncorroborated  statement,  ad- 
mission, or  testimony  of  the  parties,  or  upon  any  statement 
or  finding  of  fact  made  by  referee;  but  the  court  must,  in 
addition  to  any  statement  or  finding  of  the  referee,  require 
l)roof  of  the  facts  alleged,  and  such  proof,  if  not  taken  before  ' 
the  court,  must  be  upon  written  questions  and  answers. 

History:      Enacted    March    21,    1S72;    amended    March    P.O,    1S7-1, 
Code    Amdts.    1873-4,   p.    191. 


§131.  [COURT  MUST  FILE  DECISION.]  INTER- 
LOCUTORY JUDGMENT,  WHEN.  In  actions  for  divorce, 
the  court  must  file  its  decision  and  conclusions  of  law  as  in 
other  cases,  and  if  it  determines  that  #io  divorce  shall  be 
granted,  final  judgment  must  thereupon  be  entered  accord- 
ingly. If  it  determines  that  the  divorce  ought  to  be  granted, 
an  interlocutory"  judgment  must  be  entered,  declaring  that 
the  party  in  whose  favor  the  court  decides  is  entitled  to  a 
divorce.  After  the  entry  of  the  interlocutory  judgment, 
neither  party  shall  have  the  right  to  dismiss  the  action  with- 
out the  consent  of  the  other. 

History:  Enacted  March  2,  1903,  Stats,  and  Amdts.  1903,  p. 
7.5;  amended  April  16,  1909,  Stats,  and  Amdts.  1909,  p.  491; 
April  24,  1915,  Stats,  and  Amdts.  1915,  p.  209.  In  effect  August 
8,    1915. 

§  132.     FINAL      JUDGMENT,      AFTER     ONE     YEAR. 

When  one  year  has  expired  after  the  entry  of  such  inter- 
locutory judgment,  the  court  on  motion  of  either  party,  or 
upon  its  own  motion,  may  enter  the  final  judgment  granting 
the  divorce,  and  such  final  judgment  shall  restore  them  to 
the  status  of  single  persons,  and  permit  either  to  marry  after 
the  entry  thereof;  and  such  other  and  further  relief  as  may 
1)6  necessary  to  complete  disposition  of  the  action,  but 

45 


§132  CIVIL  CODE.  [Div.I.Pt.lIl. 

If  any  appeal  is  taken  from  the  interlocutory  judgment  or 
motion  for  a  new  trial  made,  final  judgment  shall  not  be  en 
tered  until   such   motion   or  appeal   has  been   finally  disposed 
of,  nor  then,  if  the  motion  has  been  granted  or  judgment  re- 
versed. 

The  death  of  either  party  after  the  entry  of  the  interlocu- 
tory judgment  does  not  impair  the  power  of  the  court  to  en- 
ter final  judgment  as  hereinbefore  provided;  but  such  entry 
shall  not  validate  any  marriage  contracted  by  either  party  be- 
fore the  entry  of  such  final  judgment,  nor  constitute  any  de- 
fense of  any  criminal  prosecution  made   against  either. 

History:     Enacted  March  2,  ]903,  Stats,  and  Amdts.  1903,  p.  76. 


46 


Tit.I,ch.II,art.IV.]    RELIEF,  HOW  GIVEN.  §§  136,  137 


ARTICLE  IV. 

GENERAL  PROVISIONS. 

§  136.  Relief  may  be  adjudged  in  some  cases,  wliere  separation 
is  denied. 

§  137.     Expenses   of   action   for  divorce.      [Alimony.] 

§  138.     Orders    respecting   custody   of   children. 

§  139.  Support  of  wife  and  children  on  divorce  or  separation 
granted  wife. 

§  140.      Security  for  maintenance  and  alimony. 

§  141.      Court  shalL  resort  to  what,  in  executing  certain  sections. 

§  142.  If  wife  has  sufficient  for  her  support,  court  may  with- 
hold  allowance. 

§143.  Community  and  separate  property  may  be  subjected  to 
support. 

§  144.     Legitimacy  of  issue.      [Divorce  for  adultery  of  husband.] 

§  145.     Same.      [Divorce   for  adultery  of  wife.] 

§  146.     Disposition   of   community   property. 

§  147.     Same.      [Duty  of  court  to   dispose   of.] 

§  148.      Same.      [Subject    to    revision    on    appeal.] 

§  136.  RELIEF  MAY  BE  ADJUDGED  IN  SOME 
CASES,  WHERE  SEPARATION  IS  DENIED.  Though 
judgment  of  divorce  is  denied,  the  court  may,  in  an  action 
for  divorce,  provide  for  the  maintenance  by  the  husband,  of 
the  wife  and  children  of  the  marriage,  or  any  of  them. 

Historj-:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  337,  held 
unconstitutional;  see  history,  §  4  ante;  amended  March  21,  1905, 
Stats,  and  Amdts.   1905,  p.    634. 

§137.  EXPENSES  OF  ACTION  FOR  DIVORCE. 
[ALIMONY.]  When  an  action  for  divorce  is  pending,  the 
court  may,  in  its  discretion,  require  the  husband  to  pay  as 
alimony  any  money  necessary  to  enable  the  wife  to  support 
herself  and  her  children,  or  to  prosecute  or  defend  the  action. 

47 


§138  CIVIL    CODE.  [Div.I,Pt.III. 

[Permanent  support.]  When  the  husband  wilfully  deserts 
the  wife  or  when  the  husband  wilfully  fails  to  provide  for 
the  wife  or  when  the  wife  has  any  cause  of  action  for  divorce 
as  provided  in  section  ninety-two  of  this  code,  she  may, 
without  applying  for  a  divorce,  maintain  in  the  superior 
court  an  action  against  him  for  permanent  support  and  main- 
tenance of  herself  or  of  herself  and  children.  During  the 
pendency  of  such  action  the  court  may,  in  its  discretion,  re- 
quire the  husband  to  pay  as  alimony  any  money  necessary 
for  the  prosecution  of  the  action  and  for  support  and  main- 
tenance, and  execution  may  issue  therefor  in  the  discretion 
of  the  court.  The  final  judgment  in  such  action  may  be  en- 
forced by  the  court  by  such  order  or  orders  as  in  its  discre- 
tion it  may  from  time  to  time  deem  necessary,  and  such  or- 
der or  orders  may  be  varied,  altered,  or  revoked  at  the  dis- 
cretion of  the  court. 

[In  effect  when.]  Sec.  2.  This  act  shall  take  effect  and  be 
in  force  immediately  upon  its  passage  and  approval. 

History:  Enacted  March  21,  1872;  amended  March  20,  1878, 
Code  Amdts.  1877-8,  p.  76;  April  6,  1880,  Code  Amdts.  (C.  C.  pt.), 
p.  4;  March  18,  1905,  Stats,  and  Amdts.  1905,  c.  CCXVI,  p.  205; 
amended  March  1,  1907,  Stats,  and  Amdts.  1907,  p.  82,  Kerr's 
Stats,  and  Amdts.    1906-7,  p.    400. 


§  138.  ORDERS  RESPECTING  CUSTODY  OF  CHIL- 
DREN. In  actions  for  divorce  the  court  may.  during  the 
pendency  of  the  action,  or  at  the  final  hearing  or  at  any 
time  thereafter  during  the  minority  of  anj'  of  the  children  of 
the  marriage,  make  such  order  for  the  custody,  care,  educa- 
tion, maintenance  and  support  of  such  minor  children  as  may 
seem  necessary  or  proper,  and  may  at  any  time  modify  or 
vacate  the  same. 

Hi-story:  Enacted  March  21,  1872;  amended  March  3,  1905, 
Stats,  and  Amdts.  1905,  p.  43. 

48 


Tit.I,ch.II,art.IV.]      SUPPORT— SECURITY  FOR.         §§  139-142 

§139.  SUPPORT  OF  WIFE  AND  CHILDREN  ON 
DIVORCE    OR    SEPARATION    GRANTED    TO    WIFE. 

Where  a  divorce  is  granted  for  an  ofifense  of  the  hnsband, 
the  court  maj'  compel  him  to  provide  for  the  maintenance  of 
the  children  of  the  marriage,  and  to  make  such  suitable  al- 
lowance to  the  wife  for  her  support,  during  her  life,  or  for 
a  shorter  period,  as  the  court  may  deem  just,  having  regard 
to  the  circumstances  of  the  parties  respectively;  and  the 
court  may,  from  time  to  time,  modify  its  orders  in  these  re- 
spects. 

History:      Enacted  March   21,   1872. 

§140.  SECURITY  FOR  MAINTENANCE  AND  ALI- 
MONY. The  court  may  require  the  husband  to  give  rea- 
sonable security  for  providing  maintenance  or  making  any 
payments  required  under  the  provisions  of  this  chapter,  and 
may  enforce  the  same  by  the  appointment  of  a  receiver,  or 
by  any  other  remedy  applicable  to  the  case. 

History:     Enacted  March   21,  1S72. 

§  141.  COURT  SHALL  RESORT  TO  WHAT,  IN  EXE- 
CUTING CERTAIN  SECTIONS.  In  executing  the  five 
preceding  sections  the  court  must  resort: 

1.  To  the   community  property;  then, 

2.  To  the  separate  propert}-  of  the  husband. 

History:      Enacted  March   21,  1872. 

§142.  IF  WIFE  HAS  SUFFICIENT  FOR  HER  SUP- 
PORT,    COURT     MAY     WITHHOLD      ALLOWANCE. 

\\'hen  the  wife  has  either  a  separate  estate,  or  there  is  com- 
munity property  sufficient  to  give  her  alimony  or  a  proper 
support,  the  court,  in  its  discretion,  may  withhold  any  allow- 
ance to  her  out  of  the  separate  property  of  the  husband. 

History:     Enacted  March   21,  1872. 

49 


§§143-146  CIVIL   CODE.  [Div.I.Pt.III. 

§  143.  COMMUNITY  AND  SEPARATE  PROPERTY 
MAY  BE  SUBJECTED  TO  SUPPORT  AND  EDUCATE 
CHILDREN.  The  community  property  and  the  separate 
property  may  be  subjected  to  the  support  and  education  of 
the  children  in  such  proportions  as  the  court  deems  just. 

History:     Enacted  March   21,  1S72. 

§  144.  LEGITIMACY  OF  ISSUE.  [DIVORCE  FOR 
ADULTERY  OF  HUSBAND.]  When  a  divorce  is  granted 
for  the  adultery  of  the  husband,  the  legitimacy  of  children 
of  the  marriage  begotten  of  the  wife  before  the  commence- 
ment of  the  action  is  not  afifected. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  338,  held 
unconstitutional;   see  history,   §  4  ante. 

§  145.  SAME.  [DIVORCE  FOR  ADULTERY  OF 
WIFE.]  When  a  divorce  is  granted  for  the  adultery  of  the 
wife,  the  legitimacy  of  children  begotten  of  her  before  the 
commission  of  the  adultery  is  not  afifected;  but  the  legiti- 
macy of  other  children  of  the  wife  may  be  determined  by 
the  court,  upon  the  evidence  in  the  case. 

History:     Enacted  March   21,  1872. 

§  146.     DISPOSITION  OF  COMMUNITY  PROPERTY. 

In  case  of  the  dissolution  of  the  marriage  by  the  decree  of 
a  court  of  competent  jurisdiction,  the  community  property, 
and  the  homestead,  shall  be  assigned  as  follows: 

1.  If  the  decree  be  rendered  on  the  ground  of  adultery,  or 
extreme  cruelty,  the  community  property  shall  be  assigned  to 
the  respective  parties  in  such  proportions  as  the  court,  from 
all  the  facts  of  the  case,  and  the  condition  of  the  parties,  may 
deem  just. 

2.  If  the  decree  be  rendered  on  any  other  ground  than  that 
of  adultery  or  extreme  cruelty,  the  community  propert}^  shall 
be  equally  divided  between  the  parties. 

SO 


Tit.I,ch.II,art.IV.]    COMMUNITY  PROPERTY.  §§147,148 

3.  If  a  homestead  has  been  selected  from  the  community 
propert}',  it  may  be  assigned  to  the  innocent  party,  either 
absolute!}'  or  for  a  limited  period,  subject,  in  the  latter  case, 
to  the  future  disposition  of  the  court,  or  it  may,  in  the  dis- 
cretion of  the  court,  be  divided,  or  be  sold  and  the  proceedti 
divided. 

4.  If  a  homestead  has  been  selected  from  the  separate 
property  of  either,  it  shall  be  assigned  to  the  former  owner 
of  such  property,  subject  to  the  power  of  the  court  to  assign 
it  for  a  limited  period  to  the  innocent  party. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  191,  192;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  338,  held  un- 
constitutional;  see   history,    §  4   ante. 

§  147.     SAME.     [DUTY  OF  COURT  TO  DISPOSE  OF.] 

The  court,  in  rendering  a  decree  of  divorce,  must  make  such 
order  for  the  disposition  of  the  community  property,  and  of 
the  homestead,  as  in  this  chapter  provided,  and,  whenever 
necessary  for  that  purpose,  -may  order  a  partition  or  sale  of 
the  property  and  a  division  or  other  disposition  of  the  pro- 
ceeds. 

History:  Enacted  March  21.  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    192. 

§  148.  SAME.  [SUBJECT  TO  REVISION  ON  AP- 
PEAL.] The  disposition  of  the  community  property,  and  of 
the  homestead,  as  above  provided,  is  subject  to  revision  on 
appeal  in  all  particulars,  including  those  which  are  stated  to 
be  in  the  discretion  of  the  court. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    192. 


51 


§155 


CIVIL    CODE. 


[Div.T.Pt.TTI. 


CHAPTER  III. 


HUSBAND  AND  WIFE. 


§  155. 
§  156. 
§  157. 
§  158. 
§  159. 
§  160. 
§  161. 
§  162. 
§  163. 
§  164. 


§  165. 
§  166. 
§  167. 
§  16S. 
§  169. 


§  171a 
§  172 
§  173 

§  174 
§  175 
§  176 
§  177 
§  178 
§  179 
§  ISO 
§  181 


Mutual   obligations   of  husband   and  wife. 

Rights   of  husband,   as  head  of   family. 

In   other   respects   their   Interests  separate. 

Husband  and   wife   may  make  contracts. 

How  far  may  impair  their  legal  obligations. 

Consideration  for  agreement  of  separation. 

May  be  joint  tenants,   etc. 

Separate  property   of  the   wife. 

Separate  property  of  the  husband. 

Community  property.  Conveyances  of  real  property  to 
and  by  married  women.  Time  limit  for  bringing  ac- 
tion. 

Inventory   of  separate  property  of  wife. 

Filing  inventory  notice  of  wife's  title. 

Community  property,  contracts  by  wife. 

Earnings  of  wife  not  liable  for  debts  of  husband. 

Earnings  of  wife,  when  living  separate,  separate  prop- 
erty. 

Liability   for   debts   of   wife    contracted   before    marriage. 

Wife's  property  not  liable  for  debts  of  the  husband,  buL 
liable  for  her  own  debts. 

Torts  of  married  "woman. 

Power   of  the   husband  over  community   property. 

Courtesy  and  dower  not  allowed. 

Support  of  wife. 

Husband  not  liable  for  support  when  abandoned  by  wife. 

Wlien   wife   must   support   husband. 

Rights  of  husband  and  wife  governed  by  what. 

Marriage  settlement  contracts,  how  executed. 

Same.      To   be   acknowledged  and   recorded. 

Effect  of  recording. 

Minors  may  make  marriage  settlements. 


§  155.     MUTUAL  OBLIGATIONS  OF  HUSBAND  AND 

WIFE.     Husband    and    wife    contract    towards    each    other 
obligations  of  mutual  respect,  fidelity,  and  support. 


History:     Enacted  March  21,  187: 

52 


Tit. I, ch. TIL]    KTGHTS  OF  HUSBAND— CONTRACTS.    §§156-160 

§  156.     RIGHTS  OF  HUSBAND,  AS  HEAD    OF    KAM- 

ILY.  The  husband  is  the  head  of  the  family.  He  may 
choose  any  reasonable  place  or  mode  of  living,  and  the  wife 
must  conform  thereto. 

History:     Enacted  Marcli  21.  1872. 

§  157.  IN  OTHER  RESPECTS  THEIR  INTERESTS 
SEPARATE.  Neither  husband  nor  wife  has  any  interest  in 
the  property  of  the  other,  but  neither  can  be  excluded  from 
the   other's  dwelling. 

Hi-story:     Enacted  March  21,  1S72. 


§  158.  HUSBAND  AND  WIFE  MAY  MAKE  CON- 
TRACTS. Either  husband  or  wife  may  enter  into  any  en- 
gagement or  transaction  with  the  other,  or  with  any  other 
person,  respecting  property,  which  either  might  if  unmar- 
ried; subject,  in  transactions  between  themselves,  to  the 
general  rules  which  control  the  actions  of  persons  occupying 
confidential  relations  with  each  other,  as  defined  by  the  title 
on  trusts. 

History;     Enacted  March  21,  1872. 

§  159.  HOW  FAR  MAY  ALTER  THEIR  LEGAL  RE- 
LATIONS. A  husband  and  wife  cannot,  by  any  contract 
with  each  other,  alter  their  legal  relations,  except  as  to  prop- 
erty, and  except  that  they  may  agree,  in  writing,  to  an  im- 
mediate separation,  and  may  make  provision  for  the  sup- 
port of  either  of  them  and  of  their  children  during  such  sep- 
aration. 

History:,   Enacted  March  21,  1872;  amended  March  30,  1874.  Code 
Amdts.   1873-4,  p.   193. 

§160.  CONSIDERATION  FOR  AGREEMENT  OF 
SEPARATION.     The  mutual  consent    of    the    parties    is    a 

53 


§§161-164  CIVIL   CODE.  Div.I,Pt.IlI. 

sufficient  consideration  for  such  an  agreement  as  is  men- 
tioned in  the  last  section. 

History:     Enacted  March  21,  1872. 

§  161.  MAY  3E  JOINT  TENANTS,  ETC.  A  husband 
and  wife  may  hold  property  as  joint  tenants,  tenants  in  com- 
mon, or  as  community  property. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sioners, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  338;  held 
unconstitutional;   see  history,    §  4  ante. 

§  162.     SEPARATE  PROPERTY    OF   THE   WIFE.     All 

property  of  the  wife,  owned  by  her  before  marriage,  and  that 
acquired  afterwards  by  gift,  bequest,  devise,  or  descent,  with 
the  rents,  issues,  and  profits  thereof,  is  her  separate  property. 
The  wife  may,  without  the  consent  of  her  husband,  convey 
her  separate  property. 

History:     Enacted  March  21,  1872. 

§163.     SEPARATE   PROPERTY   OF  THE  HUSBAND. 

All  property  owned  by  the  husband  before  marriage,  and 
that  acquired  afterwards  by  gift,  bequest,  devise,  or  descent, 
with  the  rents,  issues,  and  profits  thereof,  is  his  separate 
property. 

History:     Enacted  March  21,  1872. 

§  164.  COMMUNITY  PROPERTY.  CONVEYANCES 
OF  REAL  ESTATE  TO  AND  BY  MARRIED  WOMEN. 
TIME  LIMIT  FOR  BRINGING  ACTION.  All  other  prop- 
erty acquired  after  marriage  by  either  husband  or  wife,  or 
both,  is  community  property;  but  whenever  any  property 
is  conveyed  to  a  married  woman  by  an  instrument  in  writ- 
ing, the  presumption  is  that  the  title  is  thereby  vested  in  her 
as  her  separate  property.  And  in  case  the  conveyance  be  to 
such  married  woman  and  to  her  husband,  or  to  her  and  any 

54 


Tit.I.ch.IIL]    INVENTORY  OF  PROPERTY.       §§  165,  166 

Other  person,  the  presumption  is  that  the  married  woman 
takes  the  part  conveyed  to  her,  as  tenant  in  common,  unless 
a  different  intention  is  expressed  in  the  instrument,  and  the 
presumption  in  this  section  mentioned  is  conclusive  in  favor 
of  a  purchaser  or  encumbrancer  in  good  faith  and  for  a  valu- 
able  consideration.     And  in  cases 

Where  married  women  have  conveyed,  or  shall  hereafter 
convey,  real  property  which  they  acquired  prior  to  May  nine- 
teenth, eighteen  hundred  and  eighty-nine,  the  husbands,  or 
their  heirs  or  assigns,  of  such  married  women,  shall  be  barred 
from  commencing  or  maintaining  any  action  to  show  that 
said  real  propert}^  was  community  propertj^,  or  to  recover 
said  real  property,  as  follows:  As  to  convejances  heretofore 
made,  from  and  after  one  year  from  the  date  of  the  taking 
effect  of  this  act;  and  as  to  conveyances  hereafter  made,  from 
and  after  one  year  from  the  filing  for  record  in  the  recorder's 
office  of  such  convej'ances,  respectively.  . 

History:  Enacted  March  21,  1872;  amended  March  19,  1SS9, 
Stats,  and  Amdts.  1S89,  p.  32,8;  March  3,  1893,  Stats,  and  Aindts. 
1893,  p.  71;  March  4,  1897,  Stats,  and  Amdts.  1897,  p.  63;  by  Code 
Commissioners,  Act  March  16.  1900-1,  p.  193;  held,  unconstitu- 
tional,  see   history,   §  4   ante. 

§  165.  INVENTORY  OF  SEPARATE  PROPERTY  OF 
WIFE.  A  full  and  complete  inventory  of  the  separate  per- 
sonal property  of  the  wife  may  be  made  out  and  signed  by 
her,  acknowledged  or  proved  in  the  manner  required  by  law 
for  the  acknowledgment  or  proof  of  a  grant  of  real  property 
b}^  an  unmarried  woman,  and  recorded  in  the  office  of  the 
recorder  of  the  county  in  which  the  parties  reside. 

History:     Enacted  March  21,  1872. 

§  166.  FILING  INVENTORY  NOTICE  OF  WIFE'S 
TITLE,  ETC.  The  filing  of  the  inventory  in  the  recorder's 
office  is  notice  and  prima  facie  evidence  of  the  title  of  the 
wife. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  193. 

55 


§§167-171  CIVIL  CODE.  [Div.I,rt.III. 

§  167.     COMMUNITY    PROPERTY,    CONTRACTS    BY 

WIFE.  The  property  of  the  community  is  not  liable  for  the 
contracts  of  the  wife,  made  after  marriage,  unless  secured  by 
a  pledge  or  mortgage  thereof  executed  by  the  husband. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Anidts.   1S73-4,  p.  193. 

§  168.  EARNINGS  OF  WIFE  NOT  LIABLE  FOR 
DEBTS  OF  HUSBAND.  The  earnings  of  the  wife  are  not 
liable  for  the  debts  of  the  husband. 

History:     Enacted  March  21,  1872. 

§  169.  EARNINGS  OF  WIFE,  WHEN  LIVING  SEP- 
ARATE, SEPARATE  PROPERTY.  The  earnings  and  ac- 
cumulations of  the  wife,  and  of  her  minor  children  living 
with  her  or  in  her  custody,  while  she  is  living  separate  from 
her  husband,  are  the  separate  property  of  the  wife. 

Hi.storj-:     Enacted  March  21,  1S72. 

§  170.  LIABILITY  FOR  DEBTS  OF  WIFE  CON- 
TRACTED BEFORE  MARRIAGE.  The  separate  property 
of  the  husband  is  not  liable  for  the  debts  of  the  wife  con- 
tracted before  the  marriage. 

Historj':  Enacted  Marcli  21,  1S72;  amended  by  Code  Commis- 
sioners, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  193; 
,held   unconstitutional,    see    liistory,    §  4,    ante. 

§  171.  WIFE'S  PROPERTY  NOT  LIABLE  FOR 
DEBTS  OF  THE  HUSBAND,  BUT  LIABLE  FOR  HER 
OWN  DEBTS.  The  separate  property  of  the  wife  is  liable 
for  her  own  debts  contracted  before  or  after  her  marriage, 
but  is  not  liable  for  her  husband's  debts;  provided,  that  the 
separate  property  of  the  wife  is  liable  for  the  pajment  of 
debts  contracted  by  the  husband  or  wife  for  the  necessaries 
of  life  furnished  to  them  or  either   of  them  while  they  are 

56 


Tit. I, ch. III.]       TORTS  OF  MARRIED  WOMAN.  §§171a-173 

living  together;  provided,  that  the  provisions  of  the  fore- 
going proviso  shall  not  apply  to  the  separate  property  of  the 
wife  held  by  her  at  the  time  of  her  marriage  or  acquired  by 
her  by  devise,  succession,  or  gift,  other  than  by  gift  from 
the  husband,  after  marriage. 

History:  Enacted  March  21,  1S72;  amended  March  18,  1905, 
Stats,  and  Amdts.  1905,  p.  206;  May  29,  1915,  Stats,  and  Amdts. 
1915,   p.    920.      lu  effe»-t   August   S,    1915. 


§  171a.  TORTS  OF  MARRIED  WOMAN.  For  civil  in- 
juries committed  by  a  married  woman,  damages  may  be  re- 
covered from  her  alone,  and  her  husband  shall  not  be  liable 
therefor,  except  in  cases  where  he  would  be  jointly  liable 
with  her  if  the  marriage  did  not  exist. 

Histciry:  Enacted  May  21,  1913,  Stats,  and  Amdts.  1913,  p.  217. 
In  effect  August  10,  1913. 


§172.  POWER  OF  HUSBAND  OVER  COMMUNITY 
PROPERTY.  The  husband  has  the  management  and  con- 
trol of  the  community  property,  with  the  like  absolute  power 
of  disposition,  other  than  testamentary,  as  he  has  of  his  sep- 
arate estate;  provided,  however,  that  he  cannot  make  a  gift 
of  such  community  property,  or  convey  the  same  without  a 
valuable  consideration,  unless  the  wife,  in  writing,  consent 
thereto;  and  provided  also,  that  no  sale,  conveyance  or  en- 
cumbrance of  the  furniture,  furnishings  and  fittings  of  the 
home,  or  of  the  clothing  and  wearing  apparel  of  the  wife  or 
minor  children,  which  is  community  property  shall  be  made 
without  the  written  consent  of  the  wife. 

History:  Enacted  March  21,  1872;  amended  March  31,  1891, 
Stats,  and  Amdts.  189  1,  p.  425;  March  23,  1901,  Stats,  and  Amdts. 
1900-1,  p.  598. 

§173.     COURTESY  AND   DOWER    NOT    ALLOWED. 

No  estate  is  allowed  the  husband  as  tenant  by  courtesy-  upon 

57 


§§  174-176  CIVIL   CODE.      V  [Div.I.Pt.III. 

the  death  of  his  wife,  nor  is  any  estate  in  dower  allotted  to 
the  wife  upon  the  death  of  her  husband. 

History:  Enacted  March  21,  1872.  The  Act  of  April  17,  1S50, 
§  10  (Stats.  1850,  ch.  103,  p.  254),  contained  the  same  provision. — 
See  Beard  vs.  Knox,  6  Cal.  252,  756,  63  Am.  Dec.  125;  Panaud  vs. 
Jones,  1  Cal.   488,   513. 


§  174.  SUPPORT  OF  WIFE.  If  the  husband  neglect  to 
make  adequate  provision  for  the  support  of  his  wife,  except 
in  the  cases  mentioned  in  the  next  section,  any  other  person 
may,  in  good  faith,  supply  her  with  articles  necessary  for  her 
support,  and  recover  the  reasonable  value  thereof  from  the 
husband. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.   193. 

§  175.  HUSBAND  NOT  LIABLE  FOR  SUPPORT 
WHEN  ABANDONED  BY  WIFE.  A  husband  abandoned 
by  his  wife  is  not  liable  for  her  support  until  she  ofifers  to  re- 
turn, unless  she  was  justified,  by  his  misconduct,  in  abandon- 
ing him;  nor  is  he  liable  for  her  support  when  she  is  living 
separate  from  him,  by  agreement,  unless  such  support  is 
stipulated  in  the  agreement. 

History:  Enacted  Marcli  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  193. 


§  176.     WIFE  TO  SUPPORT  HUSBAND,  WHEN.     The 

wife  must  support  the  husband,  when  he  has  not  deserted 
her,  out  of  her  separate  property,  when  he  has  no  separate 
property,  and  there  is  no  cominunit}^  property,  and  he  is 
unable,  from  infirmit}',  to  support  himself. 

Historj-:      Enacted   March    21,    1872;    amended    March    30,    1874, 
Code  Amdts.   1873-4,  p.   194. 

58 


Tit. I. ch. III.]  MARRIAGE    SETTLEMENT.  §§  177-181 

§  177.  RIGHTS  OF  HUSBAND  AND  WIFE  GOV- 
ERNED BY  WHAT.  The  property  rights  of  husband  and 
wife  are  governed  by  this  chapter,  unless  there,  is  a  mar- 
riage  settlement  containing  stipulations   contrary  thereto. 

History:     Enacted  March  21,  1872. 

§  178.     MARRIAGE        SETTLEMENT        CONTRACTS, 

HOW  EXECUTED.  All  contracts  for  marriage  settlements 
must  be  in  writing,  and  executed  and  acknowledged  or 
proved  in  like  manner  as  a  grant  of  land  is  required  to  be 
executed  and  acknowledged  or  proved. 

History:     Enacted  March  21,  1872. 

S  179.  SAME.  TO  BE  ACKNOWLEDGED  AND  RE- 
CORDED. When  such  contract  is  acknowledged  or  proved, 
it  must  be  .recorded  in  the  office  of  the  recorder  of  every 
county  in  which  any  real  estate  may  be  situated  which  is 
granted  or  affected  by  such  contract. 

History:     Enacted  March  21,  1S72. 

§  180.  EFFECT  OF  RECORDING.  The  recording  or 
non-recording  of  such  contract  has  a  like  efifect  as  the  re- 
cording or  non-recording  of  a  grant  of  real  property. 

History:     Enacted  March  21,  1S72. 

§  181.  MINORS  MAY  MAKE  MARRIAGE  SETTLE- 
MENTS. A  minor  capable  of  contracting  marriage  may 
make  a  valid  marriage  settlement. 

History:     Enacted  March  21,  1S72. 


59 


§  193  CIVIL    CODE.  [Div.I.Pt.lIl. 


'   TITLE  II. 

PARENT  AND  CHILD 

Chapter  I.     By   Birth,     §§  193-215. 

II.     By  Adoption,  §§221-230. 


CHAPTER  I. 
CHILDREN  BY  BIRTH. 

§  193.     Legitimacy  of  children  born   in  wedlock. 

§  194.     Children  after  dissolution  of  marriage. 

§  195.     Who  may  dispute  the  legitimacy  of  a  cliild. 

§  196.  Obligation  of  parents  for  tlie  support  and  education  of 
their  children. 

§  196a.  Support  of  illegitimate  child. 

§  197.     Custody   of  legitimate  child. 

§  198.  Husband  and  wife  living  separate,  neither  to  have  su- 
perior right  to  custody  of  children. 

§  199.  When  husband  or  wife  may  bring  action  for  the  exclus- 
ive control   of  children.     Decree  in  such  cases. 

§  200.     Custody  of  an   illegitimate  child. 

§  201.     Allowance  to   parent. 

§  202.     Parent  cannot  controT  the  property  of  child. 

§  203.     Remedy   for  parental   abuse. 

§  204.     When   parental   authority   ceases. 

§  205.  Remedy  when  a  parent  dies  without  providing  for  the 
support  of  his  child. 

§  206.  Reciprocal  duties  of  parents  and  cliildren  in  maintaining 
each   other. 

§  207.  When  a  parent  is  liable  for  necessaries  supplied  to  a 
child. 

§  208.  When  a  parent  is  not  liable  for  support  furnislied  his 
child. 

§  209.  Husband  not  bound  for  the  support  of  his  wife's  children 
by  a  former  marriage. 

§  210.     Compensation  and  support  of  adult  child. 

§  211.     Pareht  may  relinquish  services  and  custodj'  of  child. 

§212.     Wages  of  minors. 

60 


Tit.II,ch.I.]  I.EGITIMACY    OF    CHILDREN.  §§193-196 

§  213.     Right  of  parent  to  determine  residence  of  child. 
§  214.     Wife  in  certain  cases  may  obtain  custody  of  minor  chil- 
dren. 
§  215.     When  child  becomes  legitimate. 


§  193.  LEGITIMACY  OF  CHILDREN  BORN  IN  WED- 
LOCK. All  children  born  in  wedlock  are  presumed  to  be 
legitimate. 

Hi-story:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  26,  1901,  Stats,  and  Amdts.  1900-1,  p.  339,  held 
unconstitutional;   see  history,    §4   ante. 

§  194.  CHILDREN  AFTER  DISSOLUTION  OF  MAR- 
RIAGE. All  children  of  a  woman  who  has  been  married, 
l)orn  within  ten  months  after  the  dissolution  of  the  marriage, 
are   presumed   to   be   legitimate   children   of   that   marriage. 

Hi.story:  Enacted  March  21,  1S72;  amended  Marcli  30,  1874, 
Code   Amdts.   1873-4,  p.   194. 


§  195.     WHO  MAY  DISPUTE  THE  LEGITIMACY  OF 

A  CHILD.  The  presumption  of  legitimacy  can  be  disputed 
only  by  the  husband  or  wife,  or  the  descendant  of  one  or 
both  of  them.  Illegitimacy,  in  such  case,  may  be  proved 
like  any  other  fact. 

Hi.st«.ry:     Enacted  March  21,  1872. 

§  196.     OBLIGATION   OF   PARENTS   FOR   THE   SUP- 
PORT AND  EDUCATION  OF  THEIR  CHILDREN.  The 

parent  entitled  to  the  custody  of  a  child  must  give  him  sup- 
port and  education  suitable  to  his  circumstances.  If  the  sup- 
port and  education  which  the  father  of  a  legitimate  child  is 
able  to  give  are  inadeciuatc,  the  mother  must  assist  him  to 
the  extent  of  her  ability. 

History:     Enacted  March  21,  1872. 

61 


§§  196a-199  CIVIL  CODE.  [Div.I.Pt.III. 

§196a.     SUPPORT   OF  ILLEGITIMATE   CHILD.     The 

father  as  well  as  the  mother,  of  an  illegitimate  child  must 
give  him  support  and  education  suitable  to  his  circumstances. 
A  civil  suit  to  enforce  such  obligations  may  be  maintained  in 
behalf  of  a  minor  illegitimate  child,  by  his  mother  or  guar- 
dian, and  in  such  action  the  court  shall  have  power  to  order 
and  enforce  performance  thereof,  the  same  as  under  sections 
one  hundred  and  thirty-eight,  one  hundred  and  thirty-nine 
and  one  hundred  and  forty  of  the  Civil  Code,  in  a  suit  for  di- 
vorce by  a  wife. 

HLstory:  Enacted  May  22,  1913,  Stats,  and  Amdts.  1913,  p.  21S. 
In  effect  August   10,   1913. 

§  197.     CUSTODY     OF     LEGITIMATE     CHILD.     The 

father  and  mother  of  a  legitimate  unmarried  minor  child 
are  equally  entitled  to  its  custody,  services  and  earnings.  If 
either  the  father  or  mother  be  dead  or  unable  or  refuse  to 
take  the  custody  or  has  abandoned  his  or  her  family,  the 
other  is  entitled  to  its  custody,  services  and  earnings. 

History:  Enacted  March  12,  1S72;  amended  March  30,  1874, 
Code  Amdts.  1S73-4,  p.  194;  April  22,  1913,  Stats,  and  Amdts. 
1913,  p.   52.      lu  effect   August   10,   1913. 

§  198.  HUSBAND  AND  WIFE  LIVING  SEPARATE, 
NEITHER  TO  HAVE  SUPERIOR  RIGHT  TO  CUS- 
TODY OF  CHILDREN.  The  husband  and  father,  as  such, 
has  no  rights  superior  to  those  of  the  wife  and  mother,  in  re- 
gard to  the  care,  custody,  education,  and  control  of  the  chil- 
dren of  the  marriage,  while  such  husband  and  wife  live  sep- 
arate and  apart  from  each  other. 

Hi.story:     Enacted  March  21,  1872. 

§199.  WHEN  HUSBAND  OR  WIFE  MAY  BRING 
ACTION  FOR  THE  EXCLUSIVE  CONTROL  OF  CHIL- 
DREN. DECREE  IN  SUCH  CASES.  Without  application 
for  a  divorce,  the  husband  or  the  wife  may  bring  an  action 

62 


Tit. II, ch. I.]      ILLEGITIMATE  CHILD— CUSTODY.  §§200-203 

for  the  exclusive  control  of  the  children  of  the  marriage; 
and  the  court  may,  during  the  pendency  of  such  action,  or 
at  the  final  hearing  thereof,  or  afterwards,  make  such  order 
or  decree  in  regard  to  the  support,  care,  custody,  education, 
and  control  of  the  children  of  the  marriage,  as  may  be  just, 
and  in  accordance  with  the  natural  rights  of  the  parents  and 
the  best  interests  of  the  children,  and  may  at  any  time  there- 
after amend,  vary,  or  modify  such  order  or  decree,  as  the 
natural  rights  and  the  interests  of  the  parties,  including  the 
children,  may  require. 

History:     Enacted  March  21,  1S72. 

§200.     CUSTODY   OF  AN     ILLEGITIMATE     CHILD. 

The  mother  of  an  illegitimate  unmarried  minor  is  entitled  to 
its  custody,  services,  and  earnings. 

History:     Enacted  March  21,  1872. 


§201.  ALLOWANCE  TO  PARENT.  The  proper  court 
may  direct  an  allowance  to  be  made  to  the  parent  of  a  child, 
out  of  its  property,  for  its  past  or  future  support  and  educa- 
tion, on  such  conditions  as  may  be  proper,  whenever  such 
direction  is  for  its  benefit. 

History:     Enacted  March  21,  1ST2. 


§202.  PARENT  CANNOT  CONTROL  PROPERTY  OF 
CHILD.  The  parent,  as  such,  has  no  control  over  the  prop- 
erty of  the  child. 

History:     Enacted  March  21,  1872. 

§203.  REMEDY  FOR  PARENTAL  ABUSE.  The  abuse 
of  parental  authority  is  the  subject  of  judicial  cognizance  in 
a  civil  action  brought  by  the  child,  or  by  its  relative  within 
the  third  degree,  or  by  the  supervisors  of  the  county  where 

63 


§§204-206  CIVIL  CODE.  [Div.I,Pt.III. 

the  child  resides;  and  when  the  abuse  is  established,  the 
child  may  be  freed  from  the  dominion  of  the  parent,  and  the 
duty  of  support  and  education  enforced. 

Hi-story:     Enacted  March  21,  1872. 


§204.     WHEN     PARENTAL     AUTHORITY     CEASES. 
The  authority  of  a  parent  ceases: 

1.  Upon  the  appointment,  by  a  court,  of  a  guardian  of  the 
person  of  a  child; 

2.  Upon  the  marriage  of  the  child;  or, 

3.  Upon  its  attaining  majority. 

History:     Enacted  March  21,  1872. 


§205.  REMEDY  WHEN  A  PARENT  DIES  WITH- 
OUT PROVIDING  FOR  THE  SUPPORT  OF  HIS 
CHILD.  If  a  parent  chargeable  with  the  support  of  a  child 
dies,  leaving  it  chargeable  to  the  county,  and  leaving  an  es- 
tate sufficient  for  its  support,  the  supervisors  of  the  county 
may  claim  provision  for  its  support  from  the  parent's  estate 
by  civil  action,  and  for  this  purpose  may  have  the  same  rem- 
edies as  any  creditors  against  that  estate,  and  against  the 
heirs,  devisees,  and  next  of  kin  of  the  parent. 

History:     Enacted  March  21,  1872. 


§206.     RECIPROCAL     DUTIES   OF   PARENTS     AND 
CHILDREN   IN   MAINTAINING   EACH   OTHER.     It  is 

the  duty  of  the  father,  the  mother,  and  the  children  of  any 
poor  person  who  is  unable  to  maintain  himself  by  work,  to 
maintain  such  person  to  the  extent  of  their  ability.  The 
promise  of  an  adult  child  to  pay  for  necessaries  previouslj- 
furnished  to  such  parent  is  binding. 

History:     Enacted  March  21,  1S72. 

64 


Tit.TI.ch.T.]         LIABILITY  FOR  NECESSARIES.  §§207-211 

§207.  WHEN  A  PARENT  IS  LIABLE  FOR  NECES- 
SARIES SUPPLIED  TO  A  CHILD.  If  a  parent  neglects 
to  provide  articles  necessary  for  his  child  who  is  under  his 
charge,  according  to  his  circumstances,  a  third  person  may 
in  good  faith  supply  such  necessaries,  and  recover  the  rea- 
sonable value   thereof  from  the  parent. 

History:     Enacted  March  21,   1S72. 

§208.  WHEN  A  PARENT  IS  NOT  LIABLE  FOR 
SUPPORT  FURNISHED  HIS  CHILD.  A  parent  is  not 
bound  to  compensate  the  other  parent,  or  a  relative,  for  the 
voluntary  support  of  his  child,  without  an  agreement  for  com- 
pensation, nor  to  compensate  a  stranger  for  the  support 
of  a  child  who  has  abandoned  the  parent  without  just  cause. 

History:     Enacted  March  21,  1872. 

§209.  HUSBAND  NOT  BOUND  FOR  THE  SUPPORT 
OF  HIS  WIFE'S  CHILDREN  BY  A  FORMER  MAR- 
RIAGE. A  husband  is  not  bound  to  maintain  his  wife's 
children  by  a  former  husband;  but  if  he  receives  them  into 
his  family  and  supports  them,  it  is  presumed  that  he  does  so 
as  a  parent,  and,  where  such  is  the  case,  they  are  not  liable 
to  him  for  their  support,  nor  he  to  them  for  their  services. 
History:     Enacted  March  21,  1872. 

§210.  COMPENSATION  AND  SUPPORT  OF  ADULT 
CHILD.  Where  a  child,  after  attaining  majority,  continues 
to  serve  and  to  be  supported  by  the  parent,  neither  party  is 
entitled  to  compensation,  in  the  absence  of  an  agreement 
tlierefor. 

History:     Enacted  March  21,  1S72. 

§211.  PARENT  MAY  RELINQUISH  SERVICES  AND 
CUSTODY  OF  CHILD.  The  parent,  whether  solvent  or  in- 
solvent, may  relinquish  to  the  child  the  right  of  controlling 
him  and  receiving  his  earnings.  Abandonment  by  the  parent 
is  presumptive  evidence  of  such  relinquishment. 
History:     Enacted  March  21,  1872. 

3  65 


§§212-215  CIVIL   CODE.  [Div.I.Pt.III. 

§212.  WAGES  OF  MINOR.  The  wages  of  a  minor  em- 
ployed in  service  may  be  paid  to  him,  until  the  parent  or 
guardian  entitled  thereto  gives  the  employer  notice  that  he 
claims  such  wages. 

History:  Enacted  March  21,  1872;  amended  Match  30,  1874, 
Code  Amdts.  1873-4,  p.  194. 

§213.  RIGHT  OF  PARENT  TO  DETERMINE  THE 
RESIDENCE  OF  CHILD.  A  parent  entitled  to  the  cus- 
tody of  a  child  has  a  right  to  change  his  residence,  subject 
to  the  power  of  the  proper  court  to  restrain  a  removal  which 
would  prejudice  the  rights  or  welfare  of  the  child. 

History:     Enacted  March  21,  1872. 

§214.  WIFE  IN  CERTAIN  CASES  MAY  OBTAIN 
CUSTODY  OF  MINOR  CHILDREN.  When  a  husband 
and  wife  live  in  a  state  of  separation,  without  being  di- 
vorced, any  court  of  competent  jurisdiction,  upon  application 
of  either,  if  an  inhabitant  of  this  state,  may  inquire  into  the 
custody  of  any  unmarried  minor  child  of  the  marriage,  and 
may  award  the  custody  of  such  child  to  either,  for  such  time 
and  under  such  regulations  as  the  case  may  require.  The  de- 
cision of  the  court  must  be  guided  by  the  rules  prescribed  in 
section  two  hundred  and  forty-six. 

History:     Enacted  March  21,  1872. 

§215.  WHEN  CHILD  BECOMES  LEGITIMATE.  A 
child  born  before  wedlock  becomes  legitimate  by  the  sub- 
sequent marriage  of  its  parents. 

History:      Enacted  March   30,   1874,  Code  Amdts.   1S73-4,  p.    195. 


66 


Tit. II, ch. II.]  ADOPTION— CONSENT.  §§221-223 


CHAPTER  II. 

ADOPTION. 

§  221.  Child  may  be  adopted. 

§  222.  Who  may  adopt. 

§  223.  Consent  to  adoption   [by  wife], 

§  224.  Adoption   of  children.     Consent  necessary.     Orphans   and 

abandoned  children. 

§  225.  Consent  of  child. 

§  226.  Proceedings   on  adoption. 

§  227.  Judge's  order  in  adoption  proceedings. 

§  228.  Effect   of  adoption. 

§  229.  Effect   on   former   relations   of   child. 

§  230.  Adoption  of  illegitimate  child. 


§221.  CHILD  MAY  BE  ADOPTED.  Any  minor  child 
may  be  adopted  by  any  adult  person,  in  the  cases  and  sub- 
ject to  the  rules  prescribed  in  this  chapter. 

History:     Enacted  March  21,  1872. 


§222.  WHO  MAY  ADOPT.  The  person  adopting  the 
child  must  be  at  least  ten  years  older  than  the  person  adopt- 
ed. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   195. 

§223.     CONSENT     TO     ADOPTION    [BY   WIFE.]     A 

married  man,  not  lawfully  separated  from  his  wife,  cannot 
adopt  a  child  without  the  consent  of  his  wife,  nor  can  a 
married  woman,  not  thus  separated  from  her  husband,  with- 
out his  consent,  provided  the  husband  or  wife,  not  consent- 
ing, is  capable  of  giving  such  consent. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  195. 

€1 


§224  CIVIL    CODE.  [Div.I.Pt.III. 

§224.  ADOPTION  OF  CHILDREN.  CONSENT  NEC- 
ESSARY.    ORPHANS  AND  ABANDONED  CHILDREN. 

A  legitimate  child  can  not  be  adopted  without  the  consent 
of  its  parents,  if  living;  nor  an  illegitimate  child  without 
the  consent  of  its  mother,  if  living;  except  that  consent  is 
not  necessary  from  a  father  or  mother  deprived  of  civil 
rights,  or  adjudged  guilty  of  adultery  or  cruelty,  and  for 
either  cause  divorced,  or  adjudged  to  be  habitually  intemper- 
ate in  the  use  of  intoxicants,  or  who  has  been  judicially  de- 
prived of  the  custody  of  the  child  on  account  of  cruelty  or 
neglect. 

[Abandoned  child.]  Neither  is  consent  of  any  parent  nec- 
essary in  case  of  any  abandoned  child.  Any  child  deserted 
by  its  parents  without  provision  for  their  identification,  or 
relinquished  by  its  parent  or  parents  for  the  purpose  of  adop- 
tion expressed  in  writing  signed  and  acknowledged  by  such 
parent  or  parents  before  an  officer  authorized  to  take  ac- 
knowledgments, or  before  the  secretary  of  any  organization 
or  society  engaged  in  the  work  of  placing  dependent  or  de- 
serted children  into  homes  in  this  state,  which  organization 
or  society  has  obtained  a  permit  therefor,  duly  executed  in 
writing,  from  the  state  board  of  charities  and  corrections, 
shall  from  the  date  of  such  act  of  desertion  or  of  such  re- 
linquishment be  deemed  to  be  an  abandoned  child  within 
the  meaning  of  this  section.  Any  child  left  in  the  care  and 
custody  of  another  by  its  parent  or  parents,  without  any  pro- 
vision for  its  support,  for  the  period  of  one  year,  may  after 
such  notice  to  the  parent  or  parents  residing  within  the 
state  and  to  such  other  relatives  of  said  child  residing  within 
the  county  as  the  court  shall  require,  be  determined  by  order 
of  the  juvenile  court  of  the  county  in  which  said  child  was 
so  left  to  be  an  abandoned  child  within  the  terms  of  this 
section. 

[Child  in  orphan  asylum.]  Any  abandoned  child  within 
the  meaning  of  this  section,  or  any  child  whose  parent  or  par- 
ents have  been  judicially  deprived  of  its  c;.istody  on  account 

68 


Tit.II,ch.II.]    ADOPTION — CONSENT  OF  CHILD.  §§225,226 

of  cruelty  or  neglect,  maintained  by  or  in  the  custody  of  any 
orphan  asykim  within  this  state,  any  charitable  organization 
or  society  receiving  state  aid  or  receiving  commitments  from 
the  juvenile  court,  may  be  adopted  with  the  consent  of  the 
managers  of  such  orphan  asylum,  charitable  organization  or 
society.  Any  orphan  child  for  whose  support  no  provision 
has  been  made  by  any  person  for  a  period  of  one  year,  but 
who  has  been  maintained  during  said  year  by  or  in  the  cus- 
tody of  any  orphan  asylum  within  this  state,  any  charitable 
organization  or  society  receiving  state  aid  or  receiving  com- 
mitments from  the  juvenile  court,  may  be  adopted  with  the 
consent  of  the  managers  of  such  orphan  asylum,  charitable 
organization  or  society. 

History:  Enacted  March  21,  1872;  amended  March  2,  1891, 
Stats,  and  Amdt.s.  1891,  p.  24;  March  9,  1893,  Stats,  and  Amdts. 
1893,  p.  39;  by  Code  Commission  Act  March  16,  1901,  Stats,  and 
Amdts.  1900-1,  p.  339,  held  unconstitutional^  see  Kerr's  Cyc.  C.  C. 
§4;  March  10,  1903,  Stats,  and  Amdts.  1903,  p.  114;  March  16, 
1907,  Stats,  and  Amdts.  1907,  p.  331,  Kerr's  Stats,  and  Amdts. 
1906-7,  p.  400;  April  12,  1911,  Stats,  and  Amdts.  1911,  p.  899; 
April  26,  1913,  Stats,  and  Amdts.  1913,  p.  95.  In  effecf  August  10, 
1913. 

§225.  CONSENT  OF  CHILD.  The  consent  of  a  child, 
if  over  the  age  of  twelve  years,  is  necessary  to  its  adoption. 

History:     Enacted  March  21,  1S72. 


§226.  PROCEEDINGS  ON  ADOPTION.  Any  person 
desiring  to  adopt  a  child  may,  for  that  purpose,  petition  the 
superior  court  of  the  county  in  which  the  petitioner  resides. 
The  person  adopting  a  child,  and  the  child  adopted,  and  the 
other  persons,  if  within  or  residents  of  said  county,  whose 
consent  is  necessary,  must  appear  before  the  court,  and  the 
necessary  consent  must  thereupon  be  signed  and  an  agree- 
ment executed  by  the  person  adopting,  to  the  effect  that 
the  child  shall  be  adopted  and  treated  in  all  respects  as  his 
own  lawful   child  should  be   treated.     If  the  persons  whose 

69 


§§227,228  CIVIL  CODE.  [Div.I.Pt.III. 

consent  is  necessary  are  not  within  or  are  not  residents  of 
said  county,  then  their  written  consent,  duly  proved  or  ac- 
knowledged, according  to  sections  eleven  hundred  and  eighty- 
two  and  eleven  hundred  and  eighty-three  must  be  filed  in 
said  superior  court  at  the  time  of  the  application  for  adop- 
tion. 

History:  Enacted  March  21,  1872;  amended  Feb.  9,  1S76;  Code 
Amdts.  1875-6,  p.  70;  April  6,  1880,  Code  Amdts.  1880  (C.  C.  pt.), 
p.  4;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  339,  held  unconstitutional,  see  history, 
§  69  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
555;  amended  March  16,  1907,  Stats,  and  Amdts.  1907,  p.  329, 
Kerr's   Stats,   and  Amdts.    1906-7,   p.    401.      lu  effect   immediately. 


§227.  JUDGE'S  ORDER  IN  ADOPTION  PROCEED- 
INGS. The  court  must  examine  all  persons  appearing  be- 
fore it  pursuant  to  the  last  section,  each  separately,  and  if 
satisfied  that  the  interests  of  the  child  will  be  promoted  by 
the  adoption,  it  must  make  an  order  declaring  that  the  child 
shall  thenceforth  be  regarded  and  treated  in  all  respects  as 
the  child  of  the  person  adopting.  The  petition,  agreement, 
consent,  arid  order  must  be  filed  and  registered  in  the  ofifice 
of  the  county  clerk  in  the  same  manner  as  papers  in  other 
special  proceedings. 

Hi.story:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  340,  held 
unconstitutional;  see  history,  §  4  ante;  re-enacted  March  21. 
1905,  Stats,  and  Amdts.   1905,  p.'  556. 


§228.  EFFECT  OF  ADOPTION.  A  child,  when  adopt-^ 
ed,  may  take  the  family  name  of  the  person  adopting.  After 
adoption,  the  two  shall  sustain  towards  each  other  the  legal 
relation  of  parent  and  child,  and  have  all  the  rights  and  be 
subject  to  all  the  duties  of  that  relation. 

Historj-:      Enacted    March    21,    1872;    amended    March    30,    1874, 
Code  Amdts.  1873-4,  p.  195. 

70 


Tit.II.ch.IL]  EFFECT   OF    ADOPTION.  §§229,230 

§229.  EFFECT  ON  FORMER  RELATIONS  OF 
CHILD.  The  parents  of  an  adopted  child  are,  from  the  time 
of  the  adoption,  relieved  of  all  parental  duties  towards,  and 
all  responsibility  for,  the  child  so  adopted,  and  have  no  right 
over  it. 

Hi.'story:     Enacted  March  21,  1872. 

§230.     ADOPTION  OF  ILLEGITIMATE  CHILD.     The 

father  of  an  illegitimate  child,  by  publicly  acknowledgi^ig  it 
as  his  own,  receiving  it  as  such,  with  the  consent  of  his  wife, 
if  he  is  married,  into  his  fkmily,  and  otherwise  treating  it  as 
if  it  were  a  legitimate  child,  thereby  adopts  it  as  such;  and 
such  child  is  thereupon  deemed  for  all  purposes  legitimate 
from  the  time  of  its  birth.  The  foregoing  provisions  of 
this  chapter  do  not  apply  to  such  an  adoption. 

History:     Enacted  March  21,  1872. 


§236  CIVIL  CODE.  [Div.I.Pt.Iir. 


TITLE  III. 

GUARDIAN  AND  WARD. 

[Under  this  head  the  Code  Commissioners  placed  not  only  the 
provisions  relating  to  the  guardianship  of  the  person  and  estate 
of  minors,  but  also  those  relating  to  the  custody  and  care  of 
the  person  and  property  of  persons  of  unsound  mind.  "Com- 
mittee" of  a  lunatic  is  termed  "guardian."] 


§  236.  Guardian,  what. 

§  237.  Ward,  what. 

§  23S.  Kinds  of  guardians. 

§  239.  General  guardian,  what. 

§  240.  Special  guardian,  what. 

§  241.  Guardian  appointed  by  will,   etc. 

§  242.  No  person  guardian  of  estate  without  appointment  [re- 
pealed]. 

§  243.  Appointment  of  guardian  by  court   [repealed]. 

§  244.  Rules  for  awarding  custody    [repealed]. 

§  245.  Jurisdiction    [repealed]. 

§  246.  Rules  for  awarding  the  custody,  or  appointing  a  general 
guardian   of   minors. 

§  247.  Powers  of  guardian  appointed  by  court  [repealed]. 

§  248.  Duties  of  guardian   of   the  person    [repealed]. 

§  249.  Duties   of   guardian   of   estate    [repealed]. 

§  250.  Relation  confidential. 

§  251.  Guardian  under  direction  of  court. 

§  252.  Death  of  a  joint  guardian. 

§  253.  Removal   of   guardian 

§  254.  Guardian  appointed  by  parent,  how  superseded. 

§  255.  Suspension  of  power  of  guardian. 

§  256.  Release  by  ward. 

§  257.  Guardian's   discliarge. 

§  258.  Insane   persons    [repealed]. 


§  236.     GUARDIAN,  WHAT.     A  guardian  is  a  person  ap- 
pointed to  take  care  of  the  person  or  property  of  another. 

History:     Enacted  March  21,  1872. 

72 


Tit. 111.]  GUARDIANS— KINDS   OF.  §§237-242 

§  237.     WARD,  WHAT.     The  person  over  whom  or  over 
whose  property  a  guardian  is  appointed,  is  called  his  ward. 
Hi-slory:     Enacted  March  21,  1872. 

§238.     KINDS  OF  GUARDIANS.     Guardians  are  either: 

1.  General;  or, 

2.  Special. 

History:     Enacted  March  21,  1S72. 

§239.  GENERAL  GUARDIAN,  WHAT.  A  general 
guardian  is  a  guardian  of  the  person  or  of  all  the  property 
of  the  ward  within  this  state,  or  of  both. 

History:     Enacted  March  21,  1872. 

§240.  SPECIAL  GUARDIAN,  WHAT.  Every  other  is 
a   special   guardian. 

History:     Enacted  March  21,  1872. 

§241.     GUARDIAN  APPOINTMENT  BY  WILL,  ETC. 

A  guardian  of  the  person  or  estate,  or  of  both,  of  a  child 
born,  or  likely  to  be  born,  may  be  appointed  by  will  or  by 
deed,  to  take  efifect  upon  the  death  of  the  parent  appointing: 

1.  If  the  child  be  legitimate,  by  the  father,  with  the  writ- 
ten consent  of  the  mother;  or  by  either  parent,  if  the  other 
be  dead  or  incapable  of  consent. 

2.  If  the  child  be  illegitimate,  by  the  mother. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   pp.    195,    196. 

§242.  NO  PERSON  GUARDIAN  OF  ESTATE  WITH- 
OUT APPOINTMENT   [repealed]. 

History;  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  340,  held 
unconstitutional;  see  history,  §  4  ante;  re-repealed  March  21, 
1905,   Stats,    and   Amdts.    1905,   p.    728. 

73 


§§243-246  CIVIL  CODE.  [Div.l.Pt.III. 

§243.     APPOINTMENT   OF    GUARDIAN   BY    COURT 

[repealed]. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  196;  April  6,  1880,  Code  Amdts.  1880  (C.  C. 
p't.),  p.  4;  repealed  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  340,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-repealed  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.  728. 

§  244.     RULES  FOR  AWARDING  CUSTODY  [repealed]. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  p.  4;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  340,  held 
unconstitutional;  see  history  §  4  ante;  re-repealed  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  728. 

§245.     JURISDICTION  [repealed]. 

History;  Enacted  March  21,  1872;  repealed  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  340, 
held  unconstitutional;  see  history,  §  4  ante;  re-repealed  March 
21,  1905,  Stats,  and  Amdts.  1905,  p.  728. 

§246.  RULES  FOR  AWARDING  THE  CUSTODY,  OR 
APPOINTING  A  GENERAL  GUARDIAN  OF  MINORS.. 

In  awarding  the  custody  of  a  minor,  or  in  appointing  a  gen- 
eral guardian,  the  court  or  officer  is  to  be  guided  by  the  fol- 
lowing  considerations: 

1.  By  what  appears  to  be  for  the  best  interest  of  the  child 
in  respect  to  its  temporal  and  its  mental  and  moral  welfare; 
and  if  the  child  is  of  a  sufficient  age  to  form  an  intelligent 
preference,  the  court  may  consider  that  preference  in  deter- 
mining the  question; 

2.  As  between  parents  adversely  claiming  the  custody  or 
guardianship,  neither  parent  is  entitled  to  it  as  of  right;  but 
other  things  being  equal,  if  the  child  is  of  tender  years,  it 
should  be  given  to  the  mother;  if  it  is  of  an  age  to  require 
education  and  preparation  for  labor  and  business,  then  to 
the  father; 

3.  Of  two  persons  equally  entitled  to  the  custody  in  other 
respects,  preference  is  to  be  given  as  follows: 

74 


Tit. III.]  AWARDING  CUSTODY,  RULES  OF.         §§247,248 

U)  To  a  parent; 

(2)  To  one  who  was  indicated  by  the  wishes  of  a  de- 
ceased parent; 

(3)  To  one  who  already  stands  in  the  position  of  a  trus- 
tee of  a  fund  to  be  applied  to  the  child's  support; 

(4)  To  a  relative. 

4.  Any  parent  who  knowingly  or  wilfully  abandons,  or  hav- 
ing the  ability  so  to  do,  fails  to  maintain  his  minor  child 
under  the  age  of  fourteen  years,  forfeits  the  guardianship  of 
such  child;  and  any  parent  or  guardian  who  knowingly  per- 
mits his  child  or  ward  to  remain  for  the  space  of  one  year 
in  any  orphan  asj-lum  of  this  state,  wherein  such  child  is  sup- 
ported by  charity,  and  who,  during  such  period,  fails  to  give 
notice  in  writing  to  the  managers  or  officers  of  such  asylum 
that  he  is  such  parent  or  guardian,  abandons  and  forever 
forfeits  all  right  to  the  guardianship,  care,  custody,  and  con- 
trol of  such  child.  The  officers  and  managers  of  any  or- 
phan asylum  having  any  such  abandoned  child  in  its  care 
have  the  preferred  right  to  the  guardianship  of  such  child. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  196;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  340,  held  unconsti- 
tutional; see  history,  §  4  ante;"  amendment  re-enacted  March  21, 
1905,   Stats,  and  Amdts.   1905,  p.   728. 

§247.  POWERS  OF  GUARDIAN  APPOINTED  BY 
COURT   [repealed]. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held 
unconstitutional,  see  history,  §  4  ante;  re-repealed  March  21, 
1905,   Stats,  and  Amdts.   1905,  p.   729. 

§248.     DUTIES   OF   GUARDIANS   OF   THE   PERSON 

[repealed]. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held 
unconstitutional;  see  history,  §  4  ante;  re-repealed  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.   729. 

75 


§§249-253  CIVIL  CODE.  [Div.I,Pt.III. 

§249.     DUTY  OF  GUARDIAN  OF  ESTATE   [repealed]. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  197;  April  6,  1880,  Code  Amdts.  1880  (C. 
C.  pt.),  p.  5;  repealed  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  341,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-repealed  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.   729. 


§250.  RELATION  CONFIDENTIAL.  The  relation  of 
guardian  and  ward  is  confidential,  and  is  subject  to  the  pro- 
visions of  the  title  on  Trust. 

,    History:     Enacted  March  21,  1872. 


§251.     GUARDIAN  UNDER  DIRECTION  OF  COURT. 

In  the  management  and  disposition  of  the  person  or  prop- 
erty committed  to  him,  a  guardian  may  be  regulated  and 
controlled  by  the  court. 

History:     Enacted  March  21,  1872. 

§252.  DEATH  OF  A  JOINT  GUARDIAN.  On  the 
death  of  one  or  two  or  more  joint  guardians,  the  power  con- 
tinues to  the  survivor  until  a  further  appointment  is  made 
by  the  court. 

History:     Enacted  March  21.  1872. 

§253.  REMOVAL  OF  GUARDIAN.  A  guardian  may  be 
removed  by  the  superior  court  for  any  of  the  following 
causes: 

1.  For  abuse  of  his  trust; 

2.  For  continued  failure  to  perform  its    [his]    duties; 

3.  For  incapacity  to  perform  its   [his]    duties; 

4.  For  gross  immorality; 

5.  For  having  an  interest  adverse  to  the  faithful  perform 
ance  of  his  duties; 

6.  For  removal  from  the  state; 

76 


Tit. I II.]  APPOINTMENT  BY  PARENT.  §§254-256 

7.  In  the  case  of  a  guardian  of  the  property,  for  insolvencj^; 
or, 

8.  When  it  is  no  longer  proper  that  the  ward  should  be 
under  guardianship. 

Historj-:  Enacted  March  21,  1S72;  amended  April  6,  18S0, 
Code  Amdts.   1880    (C.  C.  pt.),  p.   5. 

§254.  GUARDIAN  APPOINTED  BY  PARENT,  HOW 
SUPERSEDED.  The  power  of  a  guardian  appointed  by  a 
parent   is    superseded: 

1.  By  his  removal,  as  provided  by  section  two  hundred 
and   fifty-three; 

2.  By  the   solemnized   marriage   of   the   ward;   or, 

3.  By  the  ward's  attaining  majority. 

History:     Enacted  March  21,  1872. 

§255.     SUSPENSION    OF    POWER    OF    GUARDIAN. 

The  power  of  a  guardian  appointed  by  a  court,  is  suspended 
only: 

1.  By  order  of  the  court;  or, 

2.  If  the  appointment  was  made  solely  because  of  the 
ward's  minority,  by  his  attaining  majority;  or, 

3.  The  guardianship  over  the  person  of  the  ward,  by  the 
marriage  of  the  ward. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  197;  repealed  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held  unconsti- 
tutional; see  history,   §  4  ante. 

§256.  RELEASE  BY  WARD.  After  a  ward  has  come 
to  his  majorit}',  he  may  settle  accounts  with  his  guardian, 
and  give  him  a  release,  which  is  valid  if  obtained  fairly  and 
without  undue  influence. 

Historj-:     Enacted  Marcli  21,  1872. 


§§257,258  CIVIL  code.  [Div.I,Pt.in. 

§257.  GUARDIAN'S  DISCHARGE.  A  guardian  ap- 
pointed by  a  court  is  not  entitled  to  his  discharge  until  one 
j^ear  after  the  ward's  majority. 

History:     Enacted  March  21,  1872. 

§258.     INSANE  PERSONS   [repealed]. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880,  Code 
Amdts.  1880  (C.  C.  pt.),  p.  5;  repealed  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held  unconsti- 
tutional; see  history,  §  4  ante;  re-repealed  March  21,  1905,  Stats, 
and  Amdts.  1905,  p.   729. 


78 


Tit. IV.]  MASTER  AND   APPRENTICE.  §§264,265 


TITLE  IV. 

MASTER   AND   APPRENTICE. 

§  264.     Minors,  when  and  to  whom  may  be  bound  as  apprentices. 

§  265.     Persons  who  may  bind  minor  with  his  consent. 

§  266.  Indenture  of  apprenticeship,  how  to  be  executed  and 
wliat   to   contain. 

§  267.     Jury  trial  as  to  facts  of  incapacity,   etc.,  of  parent. 

§  268.     Apprenticing  of  poor  and  homeless  minors. 

§  269.  Master  to  keep  apprentice  within  the  state,  to  deliver 
him  money  and  other  property  therein. 

§  270.     Duty  to  inquire  into  the  treatment  of  minor  apprentices. 

§  271.     Hearing-  of  complaints   of  apprentices. 

§  272.  Power  of  court  to  discharge  apprentice  from  apprentice- 
ship. 

§  273.     Liability  of  master  for  breach  of  his  covenant. 

§  274.  Liability  of,  and  proceedings  against,  apprentice  guilty 
of  gross  misbehavior. 

§  275.     Enticing  away  apprentices  and  liability  for. 

§  276.  Release  of  master  removing  out  of  state  or  quitting  busi- 
ness. * 


§264.  MINORS,  WHEN  AND  TO  WHOM  MAY  BE 
BOUND  AS  APPRENTICES.  Everj'  minor  of  the  age  of 
fourteen  years  or  upwards  may  be  bound  by  indenture  as  an 
apprentice  to  any  mechanical  trade  or  art  or  the  occupation 
of  farming  to  the  age  of  eighteen  years,  if  a  female,  or  to 
the  age  of  twenty-one  3'ears,  if  a  male. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  560. 

§265.  PERSONS  WHO  MAY  BIND  MINOR  WITH 
HIS  CONSENT.  A  minor,  with  his  consent,  may  be  bound 
by  his  father,  or,  in  case  of  his  death  or  incompetency,  or 
where    he    has    wilfully   abandoned   his    family   for   one   year 

79 


§266  CIVIL    CODE.  [Div.LPt.III. 

without  making  suitable  provision  for  their  support,  or  is 
habitually  intemperate  in  the  use  of  intoxicants,  or  is  a  va- 
grant, then  by  his  mother  or  legal  guardian.  An  executor 
who,  by  the  will  of  the  father,  is  directed  to  bring  up  a  child 
to  a  trade  or  calling,  has  power  to  bind  by  indenture  in  like 
manner  as  the  father  might  have  done,  if  living. 

If  a  child  is  illegitimate,  the  mother  alone  has  power  to 
bind  him. 

If  a  minor  has  no  parent  or  guardian  competent  to  act  for 
him,  he  may  bind  himself,  with  the  approval  of  the  superior 
court  of  the  county  wherein  he  resides. 

[Mother  marrying.]  If  the  mother  of  a  minor,  whether 
legitimate  or  illegitimate,  marries  after  his  birth,  she  cannot 
bind  him  without  the  approval  of  such  superior  court. 

Historj-:  Enacted  March  21,  1872;  amended  April  6,  ISSO,  Code 
Amdts.  1880  (C.  C.  pt.),  p.  5;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held  unconsti- 
tutional; see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,   Stats,   and  Amdts.   1905,   p.   561. 


§266.  INDENTURE  OF  APPRENTICESHIP,  HOW 
TO  BE  EXECUTED  AND  WHAT  TO  CONTAIN.  Ev- 
ery indenture  of  apprenticeship  must  be  executed  in  dupli- 
cate, must  state  the  age  of  the  minor,  and,  except  as  herein- 
after provided,  must  show  that  he  consented  thereto,  must 
be  signed  by  him  and  the  person  binding  and  the  master,  and 
when  made  with  the  approval  of  the  superior  court,  a  certi- 
fied copy  of  the  order  of  approval  must  be  attached  to  the 
indenture.  One  copy  of  the  indenture  must  be  delivered 
to  the  master  and  the  other  kept  for  the  use  of  the  minor  by 
his  parent  or  guardian  when  executed  by  him,  or,  when  made 
with  the  approval  of  the  court,  it  must  be  filed  and  deposited 
w'ith  the  clerk  for  safekeeping  for  the  use  of  the  minor. 

80 


Tit. I  v.]  INCAPACITY   PARENT^TRIAL.  §§267,268 

No  indenture  binds  the  minor  after  the  death  of  the  mas- 
ter, but  thereafter  the  minor  may  be  bound  anew.  Every  in- 
denture entered  into  otherwise  than  as  herein  provided  is, 
as   against   the   apprentice,    absohitely   void. 

Hi.story:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
.sion,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.   561. 


§  267.  JURY  TRIAL  AS  TO  FACTS  OF  INCAPACITY, 
ETC.,  OF  PARENT.  Facts  of  incapacity,  desertion,  habit- 
ual intemperance,  and  vagrancy  must  be  decided  in  said 
court  by  a  jury,  before  the  indenture  can  take  efifect,  and 
an  indorsement  on  the  indenture,  under  seal  of  the  court, 
that  the  charge  or  charges  are  proved,  is  sufficient  evidence 
of  the  mother's  power  to  give  such  consent;  but  if  the  jury 
does  not  find  the  charge  or  charges  to  be  true,  the  person  at 
whose  instance  such  proceedings  may  have  been  had  must 
pay  all  costs  attending  the  same. 

Hisstory:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March   21.   1905,  Stats,  and  Amdts.   1905,  p.   561. 


§268.  APPRENTICING  OF  POOR  AND  HOMELESS 
MINOR.  When  a  minor  is  poor,  homeless,  chargeable  to  the 
count}'  or  state,  or  an  outcast,  who  has  no  visible  means  of 
obtaining  an  honest  livelihood,  the  superior  court  may,  with 
his  consent,  bind  him  as  an  apprentice   during  his  minority. 

Proceedings  therefor  may  be  instituted  by  any  citizen,  and 
no  fee  must  be  charged  by  any  officer  for  an}^  act  in  con- 
nection therewith.  In  all  indentures  by  the  court  for  bind- 
ing out  an  orphan  or  homeless  minor  as  an  apprentice  there 
must  be   inserted,  among  other  things,  a  clause  to  the  fol- 

81 


§§269,270  CIVIL  CODE.  [Div.I,Pt.III. 

lowing  effect:  that  the  master  to  whom  such  minor  is  bound 
must  cause  him  to  be  taught  to  read  and  write  and  the  ground 
rules  of  arithmetic,  ratio  and  proportion,  and  must  give  him 
the  requisite  instruction  in  the  different  branches  of  his 
trade  or  calling,  and,  at  the  expiration  of  his  term  of  service, 
must  give  him  or  her  fifty  dollars  in  gold,  and  two  whole 
new  suits  of  clothes,  to  be  worth  in  the  aggregate  at  least 
sixty   dollars   gold. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  342,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March   21,   1905,  Stats,   and  Amdts.   1905,  pp.    561,   562. 


§269.  MASTER  TO  KEEP  APPRENTICE  WITHIN 
THE  STATE,  TO  DELIVER  HIM  MONEY  AND  OTH- 
ER PROPERTY  THEREIN.  A  master  must  not  remove 
his  apprentice  out  of  the  state,  and  must  pay  and  deliver 
to  him  the  mone}%  clothes,  and  other  property  to  which  he 
is  entitled  under  the  indenture  of  apprenticeship,  to  be  held 
by  him  as  his  sole  property. 

History:  Enacted  March  21,  1S72;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  342,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March   21,   1905,   Stats,   and  Amdts.    1901,  p.   562. 


§270.  DUTY  TO  INQUIRE  INTO  THE  TREATMENT 
OF  MINOR  APPRENTICES.  Parents  and  guardians  and 
such  court  must,  from  time  to  time,  inquire  into  the  treat- 
ment of  children  bound  by  them  respectivelj',  or  with  their 
approval,  and  the  judges  of  such  courts  are  responsible  for 
the  charge  of  apprentices  bound  by  a  court  or  with  its  ap- 
proval,  and   must     defend     them     from   all    cruelty,   neglect, 

82 


Tit.IV.]  COMPLAINTS— HEARING  OF.       .         §§271,272 

breach  of  contract,  or  misconduct  on  the  part  of  their  mas- 
ters. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  342,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.   1905,  p.   562. 


§271.  HEARING  OF  COMPLAINTS  OF  APPREN- 
TICES. The  superior  court  must  hear  the  complaints  of 
apprentices  who  reside  within  the  county  against  their  mas- 
ters, alleging  undeserved  or  immoderate  correction,  insuf- 
ficient allowance  of  food,  raiment,  or  lodging,  want  of  in- 
struction in  the  different  branches  of  their  trade  or  calling, 
or  that  they  are  in  danger  of  being  removed  out  of  the  state, 
or  any  violation  of  the  indenture  of  apprenticeship,  and  the 
court  must  hear  and  determine  such  case  and  make  such 
order  therein  as  will  relieve  the  party  in  the  future. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  342,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  562. 


§272.  POWER  OF  COURT  TO  DISCHARGE  AP- 
PRENTICE FROM  APPRENTICESHIP.  The  superior 
court  has  power,  where  circumstances  require  it,  to  dis- 
charge an  apprentice  from  his  apprenticeship,  and,  in  case 
any  money  or  other  thing  has  been  paid  or  contracted  to  be 
paid  by  either  partj^  in  relation  to  the  apprenticeship,  the 
court  must  make  such  order  concerning  the  same  as  seems 
just  and  reasonable.  If  the  apprentice  so  discharged  was 
originally  bound  by  the  superior  court,  it  must,  if  found  nec- 
essary, again  bind  such  minor,  if  under  age. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  342,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  562. 

83 


§§273.274  CIVIL  CODE.  [Div.I,Pt.III. 

§273.  LIABILITY  OF  MASTER  FOR  BREACH  Ol 
HIS  COVENANT.  Every  master  is  liable  to  an  action  on 
the  indenture  for  a  breach  of  any  covenant  thereof  on  his 
part.  All  damages  recovered  in  such  action,  after  deduct- 
ing necessary  charges  in  its  prosecution,  belong  to  the 
minor,  and  must  be  applied  and  appropriated  to  his  use  by 
the  person  recovering  it  in  his  behalf,  and  must  be  paid  to 
the  minor,  if  a  inale,  at  the  age  of  twenty-one  years,  and  if 
a  female,  at  the  age  of  eighteen  years.  If  no  action  is 
brought  during  the  minority  of  the  apprentice,  it.  may  be 
commenced  by  him  in  his  own  name  at  any  time  within  two 
years  after  his  coming  of  age. 


History:  Enacted  March  21,  1872;  amended  April  6,  1880,  Code 
Amdts.  1880  (C.  C.  pt.),  p.  6;  amended  bj'  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  343,  held  unconsti- 
tutional; see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  562. 


§274.  LIABILITY  OF,  AND  PROCEEDINGS 
AGAINST,  APPRENTICES  GUILTY  OF  GROSS  MIS- 
BEHAVIOR. An  apprentice  who  is  guilty  of  any  gross 
misbehavior,  or  refusal  to  do  his  duty,  or  wilful  neglect 
thereof,  is  liable  to  the  complaint  of  his  master  in  the  su- 
perior court  of  the  county  wherein  the  apprentice  resides. 
Such  complaint  must  set  forth  the  circumstances  of  the  case, 
and  have  attached  thereto  a  citation,  signed  by  the  clerk  of 
the  court,  requiring  him  and  all  persons  who  have  cove- 
nanted in  his  behalf  to  appear  and  answer  the  complaint 
within  ten  days  after  the  service  thereof.  The  complaint 
and  citation  must  be  served  in  the  manner  required  for  serv- 
ing civil  process.  When  the  parties  have  answered,  or 
when,  though  they  have  not  answered,  the  time  therefor  al- 
lowed after  the  service  of  the  complaint  has  expired,  the 
court  must  proceed  to  hear  and  determine  the  cause,  and,  if 
the  evidence  warrants  It,  may  render  judgment  that  the  mas- 

84 


Tit.IV.]  ENTICING  AWAY— RELEASE.  §§275,276 

ter  be  discharged  from  the  contract  of  apprenticeship  and 
for  costs  of  suit.  Such  costs  may  be  recovered  from  the 
parent  or  guardian  of  the  minor,  if  there  is  any  who  signed 
the  indenture,  and  execution  therefor  may  issue  according- 
ly. If  there  is  no  parent  or  guardian  liable  for  such  cost, 
execution  may  be  issued  therefor  against  the  minor,  or  the 
amount  thereof  may  be  recovered  in  an  action  against  him 
after  he  arrives  at  full  age.  He  is  also  liable  to  the  master 
in  an  action  on  the  indenture  for  the  breach  of  any  covenant 
on  the  part  of  the  apprentice  contained  therein,  committed 
before  the  master  was   discharged  from   the  indenture. 

History:     Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion,  Act  Marcli   16,   1901,  Stats,   and  Amdts.    1900-1,  p.    343,   iield  / 
unco-nstitutional;    see    history,    §  4    ante;    amendment    re-enacted 
March  21,  1905,  Stats,  and  Amdts.   1905,  pp.  562-563. 


§275.  ENTICING  AWAY  APPRENTICES  AND  LIA- 
ABILITY  FOR.  It  is  unlawful  for  any  person  to  entice, 
counsel,  or  persuade  to  run  away  any  apprentice,  or  to  har- 
bor or  conceal  him,  knowing  him  to  be  a  runaway. 

Any  party  so   offending  is   guilty  of   a  misdemeanor,  and 

may  be   fined  not  more  than  one  hundred  dollars,   to  be  re- 
covered by  the  master  in  any  court  having  jurisdiction. 

History:  Enacted  Marcli  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  343.  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,   1905,  Stats,  and  Amdts.   1905,  p.   563. 


§276.  RELEASE  OF  MASTER  MOVING  OUT  OF 
STATE  OR  QUITTING  BUSINESS.  Whenever  any  mas- 
ter wishes  to  remove  out  of  the  state,  or  to  quit  his  trade 
or  business,  he  must  appear  with  his  apprentice  before  the 
superior  court  of  the  county  in  which  the  latter  resides,  and 
if  the  court  is  satisfied  that  the  master  has  done  justice  to  the 

85 


§276  CIVIL    CODE.  [Div.I,Pt.III. 

apprentice  for  the  time  he  has  had  charge  of  him,  the  court 
has  power  to  discharge  the  master  from  the  indenture  and  to 
again  bind  the  apprentice,  if  necessary. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  344,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.   563. 


86 


PART  IV. 

CORPORATIONS 

Title   I.     General    Provisions    Applicable    to    all    Corpora- 
tions, §§  283-403. 
II.     Insurance  Corporations,  §§  414-453hh. 

III.  Railroad   Corporations,   §§454-494. 

IV.  Street   Railroad    Corporations,   §§497-511. 
V.     Wagon    Road    Corporations,    §§  512-524. 

VI.     Bridge,   Ferry,   Wharf,   Chute,  and  Pier   Corpor- 
ations,  §§528-531. 
VII.     Telegraph    Corporations,    §§  536-540. 
VIII.     Water    and    Canal    Corporations,    §§548-552. 
IX.     Homestead  Corporations,  §§  557-566. 
X.     Savings   and   Loan    Corporations,   §§  571-583b. 
XI.     Mining  Corporations,  §§  586-590. 
XIa.     Corporations  for  the  Formation  of  Chambers  of 
Commerce,    Mechanics'    Institutes,    and    Kin- 
dred Associations,   §§  591-592e. 
XII.     Religious,    Social,   and   Benevolent    Corporations, 
§§  593-605. 
Xlla.     Societies  for  the   Prevention  of   Cruelty  to   Chil- 
dren and  Animals,  §§  607-607g. 

XIII.  Cemetery   Corporations,   §§608-616. 

XIV.  Agricultural   Fair   Corporations,  §§620-622. 
XV.     Gas  Corporations,  §§  629-632. 

XVI.     Land  and  Building  Corporations,  §§  639-648a. 
XVII.     Colleges  and  Seminaries  of  Learning,  §§649-651. 

87 


CIVIL   CODE.  [Div.I.Pt.IV. 

XVIII.     Consolidation  of  Colleges     and     Institutions     of 
Higher    Education,    §§  652-653. 
XIX.     Co-operative  Business  Corporations,  §  653a. 
XX.     Co-operative  Business  Associations,  §§  653b-653e. 
XXI.     Non-Profit,     Co-operative     Agricultural,    Viticul- 
tural,  and  Horticultural  Associations,  §§  653m- 
653s. 
XXII.     Non-Profit    Co-operative    Corporations,    §§  653t- 
653zb. 


88 


Tit. T, ell. I, art. I.]      CORPORATION,  FORMATION.  §283 


TITLE   I. 

GENERAL  PROVISIONS  APPLICABLE  TO  ALL  COR- 
PORATIONS 

Chapter  I.     Formation    of    Corporations,    §§283-321b. 
II.     Corporate  Stock,  §§322-349. 
III.     Corporate  Powers,  §§354-393. 

IV.     Extension     and     Dissolution     of     Corporations, 
§§  399-403. 
V.     General     Provisions       Affecting       Corporations, 

§§403a,  404. 
VI.     Foreign   Corporations,   §§  405-410. 


CHAPTER  I. 

FORMATION   OF  CORPORATIONS 

Article  I.     Corporations      Defined      and      How      Organized, 
§§  283-300a. 
II.     By-Laws,     Directors,     Elections,     and     Meetings, 
§§301-321b. 


89 


§283  CIVIL  CODE.  [Div.I,Pt.IV. 


ARTICLE  I. 

CORPORATIONS  DEFINED  AND  HOW  ORGANIZED. 

§  2S3.     Corporation  deflnerl. 

§  284.  [Kinds  of] — What  are  public  and  wliat  private  corpora- 
tions. 

§  285.     Private,  liow  formed. 

§  286.      [Same].     For  what  purpose. 

§  287.     Existence,  how  construed   [under  code]. 

§  288.     Existing  corporations  not  affected. 

§  289.     Name   of   instrument  creating  corporation. 

§290.  Articles  of  incorporation.  What  they  must  set  forth. 
Nuinber  of  directors  may  be  increased  or  diminished. 

§  290a.  Minimum  capital  required  to  be  paid  by  certain  corpora- 
tions. 

§  291.      Certain   corporations  to  state  further  facts   in  articles. 

§  292.     How   executed.      [Subscription   and   acknowledgment]. 

§  293.  Prerequisites  to  filing  articles.  Amounts  to  be  sub- 
scribed to  be  affixed. 

§  294.     Prerequisites  to  filing  articles  of  incorporation  for  profit. 

§  29.5.  Oath  of  officer  to  subscription  of  stock  and  payment  of 
ten  per  cent. 

§  296.  Articles  of  incorporation.  Corporate  name  must  not  be 
duplicated  or  closely  imitated. 

§  297.     Copy  of  articles  prima  facie  evidence. 

§  297a.  Restoration  of  lost  original  articles  of  incorporation. 

§  298.  Who  are  members  and  who  stockholders  of  a  corpora- 
tion. 

§  299.     When   members   die   successors   to   be   elected    [repealed]. 

§  299a.  Copies  of  articles  must  be  filed  in  every  county  vrhere 
the   corporation   acquires  property,    etc. 

S  300.     Capital   stock  of  banking  corporations. 

§  300a.   Copy   of  decree  to  be  filed  with  secntary  of  state. 


§283.  CORPORATION  DEFINED.  A  corporation  is  a 
creature  of  the  law,  liaving  certain  powers  and  duties  of  a 
natural  person.  Being  created  by  the  law,  it  may  continue 
for  any  length  of  time  which  the  law  prescribes. 

History:     Enacted  March  21,  1872. 

90 


Tit. I, ch. I, art. I.]    KINDS  OF  cORPORAXroNS.  §§284-287 

§284.  [KINDS  OF]— WHAT  ARE  PUBLIC  AND 
WHAT  PRIVATE  CORPORATIONS.  Corporations  are 
either  public  or  private.  Public  corporations  are  formed  or 
organized  for  the  government  of  a  portion  of  the  state;  all 
other  corporations  are  private. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   197. 

§285.  PRIVATE,  HOW  FORMED.  Private  corpora- 
tions ma}'  be  formed  by  the  voluntary  association  of  any 
three  or  more  persons  in  the  manner  prescribed  in  this  ar- 
ticle. A  majority  of  such  persons  must  be  residents  of  this 
state. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  198;  March  20,  1905,  Stats,  and  Amdts. 
1905,  p.   502. 

§286.  [SAME.]  FOR  WHAT  PURPOSE.  Private  cor- 
porations may  be  formed  for  any  purpose  for  which  indi- 
viduals may  lawfully  associate  themselves. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.   198. 

The   original  section   enumerated  seventeen   purposes  for  which 
corporations  might  be  formed,  and  prohibited  all  other  purposes. 

§287.  EXISTENCE,  HOW  CONTINUED  [UNDER 
CODE].  Any  corporation  existing  on  the  first  day  of  Jan- 
uary, one  thousand  eight  hundred  and  seventy-three,  formed 
under  the  laws  of  this  state,  and  still  existing,  which  has 
not  already  elected  to  continue  its  existence,  under  the  pro- 
visions of  this  code  applicable  thereto,  may,  at  any  time 
hereafter,  make  such  election  b}'  the  unanimous  vote  of  all 
its  directors,  or  such  election  may  be  made  at  any  annual 
meeting  of  the  stockholders,  or  members,  or  at  any  meeting 
called  by  the  directors  expressly  for  considering  the  sub- 
ject, if  voted  by  stockholders  representing  a  majority  of  the 

91 


§§288,289  CIVIL  code.  [Div.I.Pt.IV. 

capital  stock,  or  by  a  majoritj^  of  the  members,  or  may  be 
made  by  the  directors  upon  the  written  consent  of  that 
number  of  such  stockholders  or  members. 

[Certificate  to  be  filed.]  A  certificate  of  the  action  of  the 
directors,  signed  by  them  and  their  secretary,  when  the 
election  is  made  by  their  unanimous  vote,  or  upon  the 
written  consent  of  the  stockholders  or  members,  or  a 
certificate  of  the  proceedings  of  the  meeting  of  the  stock- 
holders or  members,  when  such  election  is  made  at  any  such 
meeting,  signed  by  the  chairman  and  secretary  of  the  meet- 
ing and  a  majority  of  the  directors,  must  be  filed  in  the 
office  of  the  clerk  of  the  county  where  the  original  articles 
of  corporation  are  filed,  and  a  certified  copy  thereof  must  be 
filed  in  the  office  of  the  secretary  of  state;  and  thereafter 
the  corporation  shall  continue  its  existence  under  the  pro- 
visions of  this  code  which  are  applicable  thereto,  and  shall 
possess  all  the  rights  and  powers,  and  be  subject  to  all  the 
obligations,  restrictions,  and  limitations  prescribed  thereby. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,  pp.    198-199. 

§288.  EXISTING  CORPORATIONS  NOT  AFFECT- 
ED. No  corporation  formed  or  existing  before  twelve 
o'clock,  noon,  of  the  day  upon  which  this  code  takes  effect, 
is  affected  by  the  provisions  of  Part  IV  of  Division  First  of 
this  code,  unless  such  corporation  elects  to  continue  its  ex- 
istence under  it  as  provided  in  section  two  hundred  and 
eighty-seven;  but  the  laws  under  which  such  corporations 
were  formed  and  exist  are  applicable  to  all  such  corpora- 
tions, and  are  repealed,  subject  to  the  provisions  of  this  sec- 
tion. 

History:     Enacted  March  21,  1872. 

§289.  NAME  OF  INSTRUMENT  CREATING  COR- 
PORATION. The  instrument  by  which  a  private  corpora- 
tion is  formed  is  called  "articles  of  incorporation." 

History:     Enacted  March  21,  1872. 

92 


Tit.I,ch.I,art.I.]     ARTICLES  OF  INCORPORATION.  §290 

§290.  ARTICLES  OF  INCORPORATION.  WHAT 
THEY  MUST  SET  FORTH.  NUMBER  OF  DIREC- 
TORS MAY  BE  INCREASED  OR  DIMINISHED.  Arti- 
cles of  incorporation  must  be  prepared,  setting  forth: 

1.  The   name  of  the   corporation. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  where  its  principal  business  is  to  be  transact- 
ed. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fihy 
years. 

5.  The  number  of  its  directors  or  trustees,  which  shall  not 
be  less  than  three,  and  the  names  and  residences  of  those 
who  are  appointed  for  the  first  year;  provided,  that  the  cor- 
porate powers,  business,  and  property  of  corporations 
formed,  or  to  be  formed  for  purposes  other  than  profit,  may 
be  exercised,  conducted,  and  controlled  by  a  board,  consist- 
ing of  such  number  of  directors  as  may  be  in  the  constitu- 
tion and  b3Maws  provided;  and  corporations  so  formed  maj', 
in  their  constitution  or  by-laws,  provide  for  the  length  of 
time  that  the  directors,  or  any  number  thereof,  shall  act, 
and  may  in  like  manner  provide  that  certain  directors,  or  a 
certain  number  of  the  board  of  directors,  to  be  selected  by 
the  corporation  or  the  board  of  directors,  in  the  mode  and 
manner  provided  in  the  constitution  or  by-laws,  shall  act  for 
any  specified  length  of  time,  or  otherwise,  as  shall  be  in  the 
constitution  or  by-laws  set  forth. 

6.  The  amount  of  its  capital  stock,  and  the  number  of 
shares  into  which  it  is  divided  and  the  par  value  thereof. 
Corporations  formed  for  profit,  pursuant  to  the  provisions 
of  this  code,  may,  by  their  articles  of  incorporation,  provide 
for  the  classification  of  their  capital  stock  into  preferred  and 
common  stock.  In  the  event  that  the  articles  of  incorpora- 
tion shall  provide  for  such  classification  the  same  must  con- 
tain a  statement  of  the  number  of  shares  of  a  stock  to  which 
preference  is  granted,  and  the  number  of  shares  of  stock  to 
which  no  preference  is  granted.     The  articles  of  incorpora- 

93 


§290a  CIVIL  CODE.  [Div.I.Pt.IV. 

tion  shall  also  state,  in  clear  and  succinct  manner,  the  nature 
and  extent  of  the  preference  granted,  and  except  as  to  the 
matters  and  things  so  stated,  no  distinction  shall  exist  be- 
tween said  classes  of  stock  or  the  owners  thereof;  pro- 
vided, however,  that  no  preference  shall  be  granted  nor  shall 
any  distinction  be  made  between  the  classes  of  stock  either 
as  to  voting  power  or  as  to  the  statutory  or  constitutional 
liability  of  the  holders  thereof  to  the  creditors  of  the  cor- 
poration; and  provided,  further,  that  the  preferred  and  com- 
mon shares  shall  be  of  the  same  par  value. 

7.  If  there  is  a  capital  stock,  the  amount  actuall}^  sub- 
scribed, and  by  whom. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  199;  April  1,  1876,  Code  Amdts.  1875-6,  p. 
70,  April  16,  1880,  Code  Amdts.  1880  (C.  C.  pt.),  p.  11;  March  31, 
1891,  Stats,  and  Amdts.  1891,  p.  285;  March  20,  1905,  Stats,  and 
Amdts.  1905,  p.  502;  March  18,  1907,  Stats,  and  Amdts.  1907,  p. 
347,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  401;  June  1,  1915,  Stats, 
and  Amdts.    1915,  p.   1481.     In  effect  August   8,   1915. 

§290a.  MINIMUM  CAPITAL  REQUIRED  TO  BE 
PAID  IN  BY  CERTAIN  CORPORATIONS.  Before  the 
secretary  of  state  issues  any  certificate  of  incorporation  to 
any  corporation,  authorized  in  its  articles  of  incorporation 
to  conduct  the  business  of  acting  as  executor,  administrator, 
guardian  of  estates,  assignee,  receiver,  depositary,  or  trus- 
tee under  appointment  of  any  court  or  bj^  authority  of  any 
law  of  this  state,  or  as  trustee  for  any  purpose  permitted  by 
law,  and  before  he  files  any  amended  articles  of  incorpora- 
tion authorizing  such  purposes  if  the  principal  place  of  busi- 
ness of  such  corporation  is  in  a  city  of  which  the  population 
does  not  exceed  one  hundred  thousand  persons,  there  iriust 
be  filed  in  his  office  the  affidavit  of  all  the  directors  of  such 
corporation  that  at  least  one  hundred  thousand  dollars  of 
the  capital  stock  has  actually  been  subscribed  and  paid  in 
in  cash  to  a  person  named  in  such  affidavit,  for  the  conduct 
of  such  trust  business  and  for  the  exclusive  benefit  and  pro- 

94 


Tit.I,ch.I,art.I.]  MINIMUM  CAPITAL.  §  290a 

tection  of  the  creditors  of  such  trust  business,  and  if  the 
principal  place  of  business  is  in  a  city,  the  population  of 
which  exceeds  one  hundred  thousand  persons,  there  must  be 
filed  in  his  office  the  affidavit  of  all  the  directors  of  such  cor- 
poration that  at  least  two  hundred  thousand  dollars  of  the 
capital  stock  has  actually  been  subscribed  and  paid  in  in  cash 
to  a  person  named  in  such  affidavit,  for  the  conduct  of  such 
trust  business  and  for  the  exclusive  benefit  and  protection  of 
the  creditors  of  such  trust  business  and  before  he  issues  any 
certificate  of  incorporation  to  any  corporation  authorized 
in  its  articles  of  incorporation  to  engage  in  the  business  of 
banking,  or  of  receiving  the  money  of  others  on  deposit, 
there  must  in  like  manner  be  filed  the  affidavit  herein  that  a 
capital  stock,  as  follows,  has  actually  been  subscribed,  and 
paid  in  in  cash  to  a  person  named  in  such  affidavit,  for  the 
benefit  of  the   corporation: 

[Capital  stock.]  (a)  In  any  locality  in  which  the  population 
does  not  exceed  five  thousand  persons,  not  less  than  twenty- 
five  thousand  dollars  if  it  is  incorporated  to  transact  either 
a  commercial  or  savings  business  or  both,  or  not  less  than 
one  hundred  twenti'-five  thousand  dollars  if  it  is  incorporat- 
ed to  transact  both  a  commercial  and  trust  business,  or  not 
less  than  one  hundred  twenty-five  thousand  dollars  if  it  is 
incorporated  to  transact  both  a  savings  and  trust  business 
and  not  less  than  one  hundred  twenty-five  thousand  dollars 
if  it  is  incorporated  to  transact  a  commercial,  savings  and 
trust  business. 

(b)  In  any  city  in  which  the  population  is  more  than  five 
thousand  persons  but  does  not  exceed  twenty-five  thousand 
persons,  not  less  than  fifty  thousand  dollars  if  it  is  incorpor- 
ated to  transact  either  a  commercial  or  savings  business  or 
both,  or  not  less  than  one  hundred  fifty  thousand  dollars  if 
it  is  incorporated  to  transact  both  a  commercial  and  trust 
business,  or  not  less  than  one  hundred  fifty  thousand  dol- 
lars if  it  is  incorporated  to  transact  both  a  savings  and  trust 
business,  and  not  less  than  one  hundred  fifty  thousand  dol- 

95 


§290a  CIVIL  CODE.  [Div.I,Pt.IV. 

lars   if  it   is   incorporated   to   transact  a   commercial,   savings 
and  trust  business. 

(c)  In  any  city  in  which  the  population  is  more  than 
twenty-five  thousand  persons,  but  does  not  exceed  one  hun- 
dred thousand  persons,  not  less  than  one  hundred  thousand 
dollars  if  it  is  incorporated  to  transact  either  a  commercial 
or  savings  business  or  both,  or  not  less  than  two  hundred 
thousand  dollars  if  it  is  incorporated  to  transact  both  a  com- 
mercial and  trust  business,  or  not  less  than  two  hundred 
thousand  dollars  if  it  is  incorporated  to  transact  both  a  sav- 
ings and  trust  business,  and  not  less  than  two  hundred  thou- 
sand dollars  if  it  is  incorporated  to  transact  a  commercial, 
savings  and  trust  business. 

(d)  In  any  city  in  which  the  population  is  more  than  one 
hundred  thousand  persons  but  does  not  exceed  two  hundred 
thousand  persons,  not  less  than  two  hundred  thousand  dol- 
lars if  it  is  incorporated  to  transact  either  a  commercial  or 
savings  business  or  both,  or  not  less  than  four  hundred  thou- 
sand dollars  if  it  is  incorporated  to  transact  both  a  com- 
mercial and  trust  business,  or  not  less  than  four  hundred 
thousand  dollars  if  it  is  incorporated  to  transact  both  a  sav- 
ings and  trust  business,  and  not  less  than  four  hundred  thou- 
sand dollars  if  it  is  incorporated  to  transact  a  commercial, 
savings  and  trust  business. 

(e)  In  any  city  in  which  the  population  exceeds  two  hun- 
dred thousand  persons,  not  less  than  three  hundred  thousand 
dollars  if  it  is  incorporated  to  transact  either  a  commercial  or 
savings  business  or  both,  or  not  less  than  five  hundred  thou- 
sand dollars  if  it  is  incorporated  to  transact  both  a  commer- 
cial and  trust  business,  or  not  less  than  five  hundred  thou- 
sand dollars  if  it  is  incorporated  to  transact  both  a  savings 
and  trust  business,  and  not  less  than  five  hundred  thousand 
dollars  if  it  is  incorporated  to  transact  a  commercial,  savings 
and  trust  business. 

[Determination  of  population.]  For  the  purposes  of  this 
section,  the  population  shown  and  determined  by  the  last 
preceding  federal  census,  or  anj-  subsequent  census  compiled 

96 


Tit. I, ch. I, art. I.]    FURTHER  FACTS  TO  BE  STATED.  §291 

and  certified  under  any  law  of  this  state,  shall  be  deemed  to 
be  the  population  of  any  city  in  which  such  corporation  is 
to  be  organized.  If  the  principal  place  of  business  of  any 
corporation  so  organized  is  located  outside  of  the  corporate 
limits  of  any  city,  then  the  population  of  that  portion  of  the 
judicial  township  in  which  said  corporation  is  to  have  its 
principal  place  of  business,  which  is  not  included  within  the 
boundaries  of  any  municipal  corporation,  as  such  population 
is  shown  and  determined  by  such  federal  or  subsequent  of- 
ficial census,  shall  be  the  basis  for  classifications  under  the 
provisions  of  this  section. 

[Approval  of  superintendent  of  banks.]  Before  the  secre- 
tary of  state  shall  issue  any  certificate  of  incorporation  to 
any  corporation  specified  in  this  section  and  before  he  files 
any  amended  articles  of  incorporation  or  other  certificate  in- 
creasing or  decreasing  the  capital  stock,  extending  or  short- 
ening the  corporate  existence  or  increasing  or  decreasing 
the  number  of  directors  of  any  such  corporation  there  must 
be  attached  to  said  certificates  or  amendments  the  approval 
of  the  superintendent  of  banks.    . 

History:  Enacted  March  21,  1907,  Stats,  and  Amdts.  1907,  p. 
4S2,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  402;  amended  March  13, 
1909,  Stats,  and  Amdts.  1909,  p.  300;  May  8,  1913,  Stats,  and 
Amdts.  1913,  p.  201;  June  3.  ^1915,  Stats,  and  Amdts.  1915,  p. 
1136.     lu  effect  August  8,  1915. 


§291.  CERTAIN  CORPORATIONS  TO  STATE  FUR- 
THER FACTS  IN  ARTICLES.  The  articles  of  incorpora- 
tion of  any  railroad,  wagon-road,  or  telegraph  organization 
must  also  state: 

1.  The  kind  of  road  or  telegraph  intended  to  be  construct- 
ed; 

2.  The  place  from  and  to  which  it  is  intended  to  be  run, 
and  all  the  intermediate  branches; 

3.  The  estimated  length   of  the  road  or  telegraph   line; 
4  97 


§§292-294  CIVIL  code.  [Div.I.Pt.IV. 

4.  That  at  least  ten  per  cent  of  the  capital  stock  subscribed 
has  been  paid  in  to  the  treasurer  of  the  intended  corpora- 
tion. 

History:     Enacted  March  21,  1S72. 

§292.  HOW  EXECUTED.  [SUBSCRIPTION  AND 
ACKNOWLEDGMENT.]  The  articles  of  incorporation 
must  be  subscribed  by  three  or  more  persons,  a  majority  ot 
whom  must  be  residents  of  this  state,  and  acknowledged  by 
each  before  some  officer  authorized  to  take  and  certify  ac- 
knowledgments or   [of]   conveyances  of  real  property. 

The  signature  of  each  person  named  in  said  articles  of  in- 
corporation as  directors  of  such  corporation  shall  be  affixed 
to  said  articles  of  incorporation  and  acknowledged  by  each 
before  some  officer  authorized  to  take  and  certify  acknowl- 
edgments of  conveyances  of  real  property. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  199;  March  20,  1905,  Stats,  and  Amdts. 
1905,  p.  503;  April  26,  1911,  Stats,  and  Amdts.  1911,  p.   1112. 


§293.  PREREQUISITE  TO  FILING  ARTICLES. 
AMOUNTS  TO  BE  SUBSCRIBED  TO  BE  FIXED.  Each 
intended  corporation  named  in  section  two  hundred  and 
ninety-one,  before  filing  articles  of  incorporation,  must  have 
actually  subscribed  to  its  capital  stock,  for  each  mile  of  the 
contemplated  work,  the  following  amounts,   to  wit: 

1.  One  thousand  dollars  per  mile  of  railroads; 

2.  One  hundred  dollars  per  mile  of  telegraph  lines; 

3.  Three  hundred  dollars  per  mile  of  wagon  roads. 

History:     Enacted  March  21,  1872. 


§294.  PREREQUISITE  TO  FILING  ARTICLES  OF 
INCORPORATIONS  FOR  PROFIT.  Before  the  articles 
of  incorporation  of  any  corporation  referred  to  in  the  pre- 

98 


Tit.I,ch.l,art.I.]      OATH  OF  SUBSCRIPTION,  ETC.       §§295,296 

ceding  section  are  filed,  there  must  be  paid  for  the  benefit  of 
the  corporation,  to  a  treasurer  elected  by  the  subscribers, 
ten  per  cent  of  the  amount  subscribed. 

History:     Enacted  March  21,  1S72. 


§295.  OATH  OF  OFFICER  TO  SUBSCRIPTION  OF 
STOCK  AND  PAYMENT  OF  TEN  PER  CENT.  Before 
the  secretary  of  state  issues  to  any  such  corporation  a  cer- 
tificate of  the  filing  of  articles  of  incorporation,  there  must 
be  filed  in  his  office  an  affidavit  of  the  president,  secretary, 
or  treasurer  named  in  the  articles,  that  the  required  amount 
of  the  capital  stock  thereof  has  been  actually  subscribed, 
and  ten  per  cent  thereof  actually  paid  to  a  treasurer  for  the 
benefit   of   the   corporation. 

History:     Enacted  March  21,  1S72. 

§296.  ARTICLES  OF  INCORPORATION.  CORPOR- 
ATE NAMES  MUST  NOT  BE  DUPLICATED  NOR 
CLOSELY  IMITATED.  Upon  filing  the  articles  of  incor- 
poration in  the  office  of  the  county  clerk  of  the  county  in 
which  the  principal  business  of  the  company  is  to  be  trans- 
acted, and  a  copy  thereof  certified  by  the  county  clerk  with 
the  secretary  of  state,  and  the  affidavit  mentioned  in  the  last 
section  where  such  affidavit  is  required,  the  secretary  of 
state  must  issue  to  the  corporation,  over  the  great  seal  of 
the  state,  a  certificate  that  a  copy  of  the  articles  containing 
the  required  statement  of  facts  has  been  filed  in  his  office, 
and  thereupon  the  persons  signing  the  articles  and  their  as- 
sociates and  successors  shall  be  a  body  politic  and  corporate 
by  the  name  stated  in  the  certificate,  and  for  the  term  of 
fifty  years,  unless  it  is,  in  the  articles  of  incorporation,  oth- 
erwise stated,  or  in  this   code  otherwise  specially  provided; 

[Not  to  file  copy  of  copy.]  Provided,  however,  that  the 
secretary  of  state  shall  not  file  any  copy  of  the  copy  of 
any    articles,    or    issue    any    certificate     of     incorporation    to 

99 


§§297, 297a  '     CIVIL  CODE.  [Div.I,Pt.IV. 

any  corporation,  which  articles  set  forth  the  corporate 
name  of  any  corporation  heretofore  organized  in  this 
state,  or  file  any  copy  of  any  articles,  or  issue  any  cer- 
tificate of  incorporation  to  any  corporation  existing  at  the 
time  of  filing  said  articles,  which  articles  set  forth  a  name  so 
closely  resembling  the  name  of  such  corporation  as  will  tend 
to  deceive.  The  secretary  of  state  shall  issue  and  file  in  his 
office  a  duplicate  of  the  certificate  hereinabove  provided  for 
and  copies  thereof,  duly  certified  by  the  secretary  of  state, 
shall  have  the  same  force  and  effect  in  evidence  as  the  orig- 
inal. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  187S-4,  p.  199;  March  23.  1901,  Stats,  and  Amdts. 
1900-1,  p.  629;  June  1,  1915,  Stats,  and  Amdts.  1915,  p.  1039.  In 
efEect  August  8,  1915. 

§297.  COPY  OF  ARTICLES  PRIMA  FACIE  EVI- 
DENCE. A  copy  of  any  articles  of  incorporation  filed  in  pur- 
suance of  this  chapter,  and  certified  by  the  secretary  of  state, 
or  by  the  county  clerk  of  the  county  where  the  original  arti- 
cles shall  have  been  filed,  must  be  received  in  all  the  courts 
of  this  state,  and  other  places,  as  prima  facie  evidence  of  the 
facts  therein  stated. 

'History:  Enacted  March  21,  1872;  amended  March  "C,  1874, 
Code  Amdts.  1873-4,  p.  200;  March  8,  1895,  Stats,  and  Amdts.  1895, 
p.   30.     In  force  March   8,   1895. 

§297a.  RESTORATION  OF  LOST  ORIGINAL  AR- 
TICLES OF  INCORPORATION.  Whenever  the  articles 
of  incorporation  of  any  corporation  have  been,  or  may  here- 
after be,  destroyed  by  conflagration  or  other  public  calamity, 
a  copy  of  the  certified  copy  of  the  articles  of  incorporation 
of  such  corporation  filed  in  the  office  of  the  secretary  of 
state  pursuant  to  the  provisions  of  section  two  hundred 
ninety-six  of  this  code,  duly  certified  by  such  secretary  of 
state,  may  be  filed  in  the  office  of  the  county  clerk  of  the 

100 


Tit.I,ch.I,art.I.]         WHO  ARE  MEMBERS.  §§298-299[a] 

count}'  where  such  articles  of  incorporation  were  on  file  at 
the  time  of  their  loss  or  destruction.  Any  such  copy  filed 
pursuant  to  this  section  shall  have  the  same  force  and  effect 
as  the  document  so  lost   or   destroyed. 

History:  Enacted  June  16.  1906,  Stats,  and  Amdts.  1906,  p. 
83,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  403.  lu  effect  immediate- 
ly. 

S298.  WHO  ARE  MEMBERS  AND  WHO  STOCK- 
HOLDERS OF  A  CORPORATION.  The  owners  of  shares 
in  a  corporation  which  has  a  capital  stock  are  called  stock- 
holders. If  a  corporation  has  no  capital  stock,  the  corpora- 
tors and  their  successors  are  called  members. 

HLstory:     PJnacted  March  21,  1872. 

§299.  WHEN  MEMBERS  DIE  SUCCESSORS  TO  BE 
ELECTED    [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.  1873-4,  p*.   200. 

§299  [a].  COPIES  OF  ARTICLES  MUST  BE  FILED 
IN  EVERY  COUNTY  WHEREIN  THE  CORPORATION 
ACQUIRED  PROPERTY,  ETC.  No  corporation  hereafter 
formed  must  purchase,  locate,  or  hold  property,  in  any  county 
in  this  state,  other  than  the  county  in  which  its  original  art- 
icles of  incorporation  are  filed,  without  filing  a  copy  ot  the 
copy  of  its  articles  of  incorporation  filed  in  the  office  of  the 
secretary  of  state,  duly  certified  by  such  "secretary  of  state, 
m  the  of^ce  of  the  county  clerk  of  the  county  in  wdiich  such 
property  is  situated,  within  sixty  days  after  such  purchase 
or  location  is  made.  Every  corporation  now  in  existence, 
whether  formed  under  the  provisions  of  this  code  or  not,  must, 
within  ninety  days  after  the  passage  of  this  section,  file  such 
certified  copy  of  the  copy  of  its  articles  of  incorporation  in 
the  office  of  the  county  clerk  of  every  county  in  this  state 

101 


§300  CIVIL  CODE.  [Div.I,Pt.IV. 

in  which  it  holds  any  property,  except  the  county  where  the 
original  articles  of  incorporation  are  filed;  and  if  any  cor- 
poration hereafter  acquires  any  property  in  a  county  other 
than  that  in  which  it  now  holds  property,  it  must,  within 
ninety  days  thereafter,  file  with  the  clerk  of  such  county  such 
certified  copy  of  the  copy  of  its  articles  of  incorporation.  The 
copies  filed  with  the  several  county  clerks,  and  certified  cop- 
ies thereof,  have  the  same  force  and  effect  in  evidence  as  the 
originals. 

Any  corporation  failing  to  comply  with  the  provisions  of 
this  section  cannot  maintain  or  defend  any  action  or  pro- 
ceeding in  relation  to  such  property,  its  rents,  issues,  or  prof- 
its, until  such  articles  of  incorporation,  and  such  certified 
copy  of  its  articles  of  incorporation,  and  such  certified  copy  of 
the  copy  of  its  articles  of  incorporation,  are  filed  at  the  places 
directed  by  the  general  law  and  this  section;  provided,  that 
all  corporations  are  liable  in  damages  for  any  and  all  loss  that 
may  arise  by  the  failure  of  such  corporation  to  perform  any 
of  the  foregoing  duties  within  the  time  mentioned  in  this 
section;  and  provided  further,  that  the  said  damages  may  be 
recovered  in  an  action  brought  in  any  court  of  this  state  of 
competent  jurisdiction,  by  any  party  or  parties  suffering  the 
same. 

History:  Enacted  April  3,  1876,  Code  Amdts.  1875-6,  p.  71; 
amended  March  23,  1878,  Code  Amdts.  1877-8,  p.  76;  April  23, 
1880,  Code  Amdts.  1880  (C.  C.  pt.),  p.  13;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  344, 
held  unconstitutional;  see  history,  §  4  ante;  amendment  re- 
enacted  March   21,   1905,  Stats,  and  Amdts.   1905,  pp.   556-557. 

§300.  CAPITAL  STOCK  OF  BANKING  CORPORA- 
TIONS—DIVIDENDS. Every  corporation  that  has  been 
or  may  be  created  under  the  general  laws  of  this  state,  doing 
a  banking  business  therein,  and  which  has  no  capital  stock, 
may  elect  to  have  a  capital  stock,  and  may  issue  certificates 
of  stock  therefor,  in  the  same  manner  as  corporations  formed 

102 


Tit.I,ch.I,art.I.]     banking   CORPORATIONS.  §300 

under  the  provisions  of  chapter  one,  article  one,  of  the  civil 
code,  relating  to  the  formation  of  corporations;  provided, 
that  no  such  corporation  shall  use  or  convert  any  moneys 
or  funds  theretofore  belonging  to  it,  or  under  its  control, 
into  capital  stock;  but  such  funds  or  moneys  must  be  held  and 
managed  only  for  the  purposes  and  in  the  manner  for  which 
they  were  created.  Before  such  change  is  made,  a  majority 
of  the  members  of  such  corporation  present  at  a  meeting 
called  for  the  purpose  of  considering  the  proposition  whether 
it  is  best  to  have  a  capital  stock,  its  amount,  and  the  number 
of  shares  into  which  it  shall  be  divided,  must  vote  in  favor 
of  having  a  capital  stock,  fix  the  amount  thereof,  and  the 
number  of  shares   into   which   it  shall  be   divided. 

Notice  of  the  time  and  place  of  holding  such  meeting,  and 
its  object,  must  be  given  by  the  president  of  such  corpora- 
tion, by  publication  in  some  newspaper  printed  and  published 
in  the  county,  or  city  and  county,  in  which  the  principal  place 
of  business  of  the  corporation  is  situated,  at  least  once  a 
week  for  three  successive  weeks  prior  to  the  holding  of  the 
meeting. 

A  copy  of  the  proceedings  of  this  meeting,  giving  the  num- 
ber of  persons  present,  the  votes  taken,  the  notice  calling 
the  meeting,  the  proof  of  its  publication,  the  amount  of  cap- 
ital actually  subscribed,  and  by  whom,  all  duly  certified  by  the 
president  and  secretary  of  the  corporation,  must  be  filed  in 
the  offices  of  the  secretary  of  state  and  clerk  of  the  county 
where  the  articles  of  incorporation  are  filed.  Thereafter  such 
corporation  is  possessed  of  all  the  rights  and  powers,  and  is 
subject  to  all  the  obligations,  restrictions,  and  limitations, 
as  if  it  had  been  originally  created  with  a  capital  stock;  and 
provided  further,  that  no  bank  in  this  state  shall  ever  pay 
any  dividend  upon  so-called  guaranty  notes,  nor  upon  -.ly 
stock,  except  upon  the  amount  actually  paid  in  money  into 
said  capital  upon  such  stock,  and  any  payment  made  in  viola- 

103 


§300a  CIVIL  CODE.  [Div.I,Pt.IV. 

tion  of  this  provision  shall  render  all  officers  and  directors 
consenting  to  the  same  jointly  and  severally  liable  to  the 
depositors  to  the  extent  thereof. 

Historj-:  Enacted  Marth  29,  1878,  Code  Amdts.  1877-8,  pp. 
77-78. 

§300a.  COPY  OF  DECREE  TO  BE  FILED  WITH 
SECRETARY  OF  STATE.  Every  corporation  which  has 
changed  its  name  under  the  provisions  of  sections  one  thou- 
sand two  hundred  and  seventy-five,  one  thousand  two  hundred 
and  seventy-six,  one  thousand  two  hundred  and  seventy-seven, 
one  thousand  two  hundred  and  seventj'-eight,  and  one  thou- 
sand two  hundred  and  seventy-nine  of  the  Code  of  Civil  Pro- 
cedure, must  file  in  the  ofifice  of  secretary  of  state  and  in  the 
office  of  the  county  clerk  of  each  county  in  which  the  original 
articles  or  certified  copies  thereof  are  required  by  law  to  be 
filed,  a  certified  copy  of  the  decree  of  the  court  changing 
such  name. 

Historj-:  Enacted  March  20,  1903,  Stats,  and  Amdts.  1903,  p. 
256.  in  force  March  20,  1903;  amended  April  16,  1909,  Stats,  and 
Amdts.    1909,  p.   973. 


104 


Tit.I.ch.I.artll.]         BY-LAWS— ADOPTION.  .  §301 


ARTICLE    II. 

BY-LAWS,    DIRECTORS,    ELECTORS.  AND   MEETINGS. 

§  301.      By-laws.      [Adoption   of,  when,  how,  and   by   whom]. 
§  302.     Directors,  election   of,   etc.      [Notice]. 

§  302a.   Financial  statement  to  stockholders  upon  request  of  ten 
per  cent. 

§  303.      By-laws,  for  what  may  provide. 

§  304.     By-laws    recorded    and    how   amended. 

§  305.     Corporate    powers    and    business    exercised    by    board    of 
directors.      Quorum. 

§  306.      Election  of  directors  and  adoption  of  by-laws  [repealed].     ' 

§  307.      Election    of   directors,   how    conducted.      Cumulative    vot- 
ing not  denied. 

§  iOS.     Organization    of   board   of  directors,    etc.      [Quorum]. 

§  309.     Dividends    from    surplus    profits.      Penalty    for    violation 
of  this  section.     Distribution  of  land,  water,   etc. 

§  310.     Removal  from  office  of  directors,  etc. 

§  311.     Justice     of    peace     may    order    meeting     of    corporation, 
when. 

§  312.     Majority   of  stock   must  be   represented  at   elections,   and  • 
a  majority  vote  together,  otherwise  voidable. 

§  312 [a]. [Same].      Corporations   other   than   for  profit. 

§  313.      Stock  of  minors,  insane,  etc.,  how  represented. 

§  314.     Election  may  be  postponed. 

§  315.     Complaints,    quo    warranto   and   proceedings    thereon,    re- 
garding elections.      [Notice]. 

§  316.     Damages   for  false   entries,  etc. 

§317.     Meeting  by   consent   to   be  valid.      [Written   waiver]. 

§  318.     Proceedings  at  meeting  to  be  binding. 

§  319.     Meetings,  where  held.' 

§  320.     When    no    provision    in    by-laws    for    regular    meetings, 
special   meetings,    how  called.      [Notice.] 

§  320a.  Waiver  of  notice   of  corporation   meeting. 

§  321.     Certain   books   to  be  open   for   inspection. 

§  321a.   Change  of  principal  place  of  business,^procedure. 

§  321b.   Stockholders'   meeting,   who   may   vote   at.      Proxies,    void 
when;  maximum  period  of;  revocable. 

105 


§§301,302     .  CIVIL  CODE.  [Div.I,Pt.IV. 

§301.  BY-LAWS.  [ADOPTION  OF,  WHEN,  HOW, 
AND  BY  WHOM.]  Every  corporation  formed  under  this 
title  must,  within  one  month  after  filing  articles  of  incorpora- 
tion, adopt  a  code  of  by-laws  for  its  government  not  incon- 
sistent with  the  constitution  and  laws  of  this  state.  The  as- 
sent of  stockliolders  representing  a  majority  of  all  the  sub- 
scribed capital  stock,  or  of  a  majority  of  the  members  if 
there  be  no  capital  stock,  is  necessary  to  adopt  by-laws,  if 
they  are  adopted  at  a  meeting  called  for  that  purpose;  and 
in  the  event  of  such  meeting  being  called,  two  weeks'  notice 
of  the  same  by  advertisement  in  some  newspaper  published 
in  the  county  in  which  the  principal  place  of  business  of  the 
corporation  is  located,  or  if  none  is  published  therein,  then 
in  a  paper  published  in  an  adjoining  county,  must  be  given 
by  order  of  the  actmg  president.  The  written  assent  of  the 
holders  of  two  thirds  of  the  stock,  or  of  two  thirds  of  the 
members,  if  there  be  no  capital  stock,  shall  be  effectual  to 
adopt  a  code  of  by-iaws  without  a  meeting  for  that  purpose. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  200-201;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  344,  held  uncon- 
stitutional; see  history,   §  4  ante. 


§302.     DIRECTORS,  ELECTION  OF,  ETC.  [NOTICE]. 

The  directors  of  a  corporation  must  be  elected  annually  by 
the  stockholders  or  members,  and  if  no  provision  is  made  in 
the  by-laws  fcr  the  time  of  election,  the  election  must  be  held 
on  the  first  Tuesday  in  June.  Notice  of  such  election  must 
be  given  as  prescribed  in  section  three  hundred  one,  unless 
all  of  the  stockholders  waive  such  notice  in  writing. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  345,  act 
held  unconstitutional,  see  history,  §  69  ante;  amendment  re- 
enacted  March  21.  1905,  Stats,  and  Amdts.  1905,  p.  557;  amended 
February  22,  1909,  Stats,  and  Amdts.  1909,  p.  48. 

106 


Tit.I,ch.I,art.II.]    FINANCIAL  STATEMENT.  §§  302a,  303 

§302a.  FINANCIAL  STATEMENT  TO  STOCKHOLD- 
ERS UPON  REQUEST  OF  TEN  PER  CENT.  Upon  the 
written  request  of  not  less  than  ten  per  cent  of  the  stock- 
holders, presented  not  less  than  two  weeks  prior  to  the  time 
of  the  election  provided  for  by  section  three  hundred  two  of 
this  code,  there  must  be  served  upon  each  stockholder,  at 
least  one  week  prior  tc  such  election,  one  copy  of  a  hnancial 
statement  of  the  aftairs  of  the  corporation,  which  must  show 
the  authorized  capital  stock  of  the  corporation,  the  amount 
of  capital  stock  subscribed,  the  amount  of  capital  actually 
paid  in,  the  assets  and  the  surplus  and  undivided  profits  of 
the  corporation  and  the  amount  of  the  last  annual,  semi-an- 
addresses  of  all  the  officers  and  directors  of  the  corporation, 
the  amount  of  mortgages,  bonded  or  other  indebtedness  of 
the  corporation  and  the  amount  of  the  last  annual,  semi-an- 
nual or  quarterly  dividend,  and  a  general  summary  of  the 
business  transacted  by  the  corporation  since  the  last  preced- 
ing annual  meeting.  The  financial  statement  herein  referred 
lO  shall  be  signed  by  the  president  and  secretary  of  the  cor- 
poration and  shall  be  sworn  to  by  such  officers  before  some 
officer  authorized  by  law  to  administer  oaths,  and  must  be 
personally  served  upon  each  stockholder  or,  in  lieu  of  per- 
sonal service,  must  be  sent  by  mail  addressed  to  each  stock- 
holder at  his  place  of  residence  if  known,  or  if  not  known, 
at  the  place  where  the  principal  office  of  the  corporation  is 
situated.  The  president  or  secretary  of  any  corporation  who 
with  intent  to  deceive""  shall  sign  a  false  financial  statement 
shall  be  deemed  guilty  of  a  misdemeanor. 

History:  Enactment  approved  June  7,  1915,  Stats,  and  Amdts. 
1915,  p.   1271.     In  efiEect  August  8,   1915. 


§303.     BY-LAWS,    FOR    WHAT    MAY    PROVIDE.     A 

corporation  may,  by  its  by-laws,  where  no  other  provision  is 
specially  made,  provide  for: 

107 


§304  CIVIL    CODE.  [Div.I.Pt.IV. 

1.  The  time,  place,  and  manner  of  calling  and  conducting 
its  meetings,  and  may  dispense  with  notice  of  all  regular 
meetings  of  stockholders  or  directors. 

2.  The  number  of  stockholders  or  members  constituting  a 
quorum. 

3.  The  mode  of  votiilg  by  proxy. 

4.  The  qualifications  and  duties  of  directors,  and  also  the 
time  of  their  annual  election,  and  the  mode  and  manner  of 
giving  notice  thereof. 

5.  The  compensation  and  duties  of  officers. 

6.  The  manner  of  election  and  tenure  of  office  of  all  officers 
other  than  the  directors;  and, 

7.  Suitable  penalties  for  violations  of  by-laws,  not  exceed- 
ing in  any  case  one  hundred  dollars  for  any  one  ofTense. 

8.  The  newspaper  in  which  all  notices  of  the  meetings  of 
stockholders  or  board  of  directors,  notice  of  which  is  re- 
quirea,  shall  be  published,  which  must  be  some  newspaper 
published  in  the  county  where  the  principal  place  of  business 
of  the  corporation  is  located,  or  if  none  is  published  therein, 
then  in  a  newspaper  published  in  an  adjoining  county;  pro- 
vided, that  when  the  by-laws  prescribe  the  newspaper  in 
which  said  publication  shall  be  made,  if  from  any  cause  at 
the  time  any  publication  is  desired  to  be  made,  the  publica- 
tion of  such  newspaper  shall  have  ceased,  the  board  of  direc- 
tors may,  by  an  order  entered  on  the  records  of  the  corpor- 
ation, direct  the  publication  to  be  'made  in  some  other  news- 
paper published  in  the  county,  or  if  none  is  published  therein, 
then  in  an  adjoining  county. 

History:  Enacted  March  21.  1ST2;  amended  March  30,  1S74, 
Code  Amdts.  1ST3-4,  p.  201;  March  19,  1889,  Stats,  and  Amdts. 
1889,  p.  365;  amended  by  Code  Commission,  Act  Marcli  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  345,  held  unconstitutional;  see  his- 
tory,  §  4   ante. 

§  304.     BY-LAWS  RECORDED  AND  HOW  AMENDED. 

All  by-laws  adopted  nmst  be  certified  by   a  majorit}-   of  the 
directors  and  secretary   of  the   corporation,  and  copied  in  a 

108 


Tit. I. ch. I, art. II.]    RECORDS— AMENDMENT.  §305 

legible  hand,  in  some  book  kept  in  the  office  of  the  corpora- 
tion, to  be  known  as  the  "book  of  by-laws,"  and  the  book 
must  then  be  open  to  the  inspection  of  the  public  during  office 
hours  each  day  except  holidays. 

The  by-laws  may  be  repealed  or  amended,  or  new  by-laws 
may  be  adopted,  at  the  annual  meeting,  or  at  any  other  meet- 
ing of  the  stockholders  or.  members,  called  for  that  purpose 
by  the  directors,  by  a  vote  representing  two  thirds  of  the  sub- 
scribed stock,  or  by  two  thirds  of  the  members.  The  writ- 
ten assent  of  the  holders  of  two  thirds  of  the  stock,  or  two 
tliirds  of  the  members  if  there  is  no  capital  stock,  is  effectual 
to  repeal  or  amend  any  by-law,  or  to  adopt  additional  by- 
laws. The  power  to  repeal  and  amend  the  by-laws,  and  adopt 
new  by-laws,  may,  by  a  similar  vote  at  any  such  meeting,  or 
similar  written  assent,  be  delegated  to  the  board  of  directors. 
The  power,  when  delegated,  may  be  revoked  by  a  similar 
vote,  at  any  regular  meeting  of  the  stockholders  or  mem- 
bers. 

Whenever  any  amendment  or  new  by-law  is  adopted,  it 
must  be  copied  in  the  book  of  by-laws  with  the  original  by- 
laws, and  immediately  after  them.  If  any  by-law  is  repealed, 
the  fact  of  repeal,  with  the  date  of  the  meeting  at  which  the 
repeal  was  enacted,  or  written  assent  was  filed,  must  be  stated 
HI  said  book.  Until  copied  or  stated  as  hereinbefore  re- 
quired, no  bj-law,  nor  any  amendment  or  repeal  thereof,  can 
be  enforced  against  any  person,  other  than  the  corporation, 
not  having  actual  notice  thereof. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  201;  March  14,  1885,  Stats,  and  Amdts. 
1885,  pp.  130-131;  amended  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  345,  held  unconstitutional;  see 
history,  §  4  ante;  amendment  re-enacted  March  21,  1905,  Stats, 
and  Amdts.   1905,  p.   557. 

§305.  CORPORATE  POWERS  AND  BUSINESS  EX- 
ERCISED BY  BOARD  OF  DIRECTORS.  QUORUM.  The 

corporate  powers,  business,  and  property  of  all  corporations 

109 


§306  CIVIL  CODE.  [Div.T,Pt.TV. 

formed  under  this  title  must  be  exercised,  conducted,  and 
controlled  by  a  board  of  not  less  than  three  directors,  to  be 
elected  from  among  the  holders  of  stock;  or  where  there  is 
no  capital  stock,  then  from  the  members  of  such  corpora- 
tions; except  that  corporations  formed  or  to  be  formed  for 
the  purpose  of  erecting  and  managing  halls  and  buildings  for 
the  meetings  and  accommodation  of  several  lodges  or  so- 
cieties of  any  benevolent  or  charitable  order  or  organization, 
and  in  connection  therewith,  the  leasing  of  stores  and  offices 
in  such  building  or  buildings  for  other  purposes,  the  corpor- 
ate powers,  business,  and  property  thereof  may  be  conducted, 
exercised,  and  controlled  by  a  board  [of]  not  less  than  three 
or  more  than  fifty  directors,  to  be  chosen  from  among  the 
stockholders  of  such  corporation  or  from  among  the  members 
of  such  order  or  organization.  A  majority  of  the  directors 
must  be  in  all  cases  residents  of  this  state.  Directors  of  cor- 
porations for  profit  must  be  holders  of  stock  therein  to  an 
amount  to  be  fixed  by  the  by-laws  of  the  corporation.  Di- 
rectors of  all  other  corporations  must  be  members  thereof. 
Unless  a  quorum  is  present  and  acting  no  business  per- 
formed or  act  done  is  valid  as  against  the  corporation.  When- 
ever a  vacancy  occurs  in  the  office  of  director,  unless  the  by- 
laws of  the  corporation  otherwise  provide,  such  vacancy 
must  be  filled  by  an  appointee  of  the  board. 

History:  Enacted  March  21.  1872;  amended  January  20,  1876, 
Code  Amdts.  1875-6,  p.  71;  March  15,  1901,  Stats,  and  Amdts. 
1900-1,  pp.  308-309;  amended  by  Code  Commission,  Act  March 
20,  1905,  Stats,  and  Amdts.  1905,  p.  503,  by  changing-  number  of 
directors  from  five  to  three   (and  negligently  omitting  an   "of"). 

Code  Coniiuiissiou  has  needlessly  bungled  and  confused  by  in- 
troducing in  a  very  disjointed  shape  the  main  provisions  in  this 
section  into  par.  5,   §  290  ante. 

§306.  ELECTION  OF  DIRECTORS  AND  ADOPTION 
OF  BY-LAWS    Irepealed]. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  202;  repealed  March  19,  1SS9,  Stats,  and 
Amdts.   1889,  p.   365. 

110 


Tit.T,ch.I,art.I  I.]  ELECTION  OF  DIRECTORS.  §307 

§307.  ELECTIONS  OF  DIRECTORS,  HOW  CON- 
DUCTED.    CUMULATIVE  VOTING   SHALL  NOT   BE 

DENIED.  All  elections  mvist  be  b^'  ballot,  and  every  stock- 
holder shall  have  the  right  to  vote  in  person  or  by  proxy 
the  number  of  shares  standing  in  his  name,  as  provided  in 
section  three  hundred  and  twelve  of  this  code,  for  as  many 
persons  as  there  are  directors  to  be  elected,  or  to  cumulate 
said  shares  and  give  one  candidate  as  many  votes  as  the  num- 
ber of  directors  multiplied  by  the  number  of  his  shares  of 
stock  shall  equal,  or  to  distribute  them  on  the  same  prin- 
ciple among  as  many  candidates  as  he  shall  think  fit.  The 
provisions  of  this  section,  so  far  as  it  relates  to  cumulative 
voting,  shall  apply  to  all  corporations  and  associations  do- 
ing business  in  this  state,  having  a  capital  stock  or  shares  of 
stock,  and  electing  directors  by  a  meeting  of  stockholders 
held  in  this  state,  whether  such  corporations  or  associations 
are  organized  under  the  laws  of  this  state  or  not,  and  no 
election  for  directors  of  any  corporation  or  association,  doing 
business  in  this  state,  and  electing  directors  in  this  state, 
shall  be  valid,  if  the  right  of  a  stockholder  to  cumulate  his 
shares  as  herein  provided  shall  be  denied. 

In  corporations  having  no  capital  stock,  each  member  of 
the  corporation  may  cast  as  many  votes  for  one  director  as 
there  are  directors  to  be  elected,  or  may  distribute  the  same 
among  any  or  all  the  candidates.  In  any  case  the  director 
receiving  the  highest  number  of  votes  shall  be  declared 
elected. 

[Cumulative  voting  not  applicable,  when.]  The  provisions 
of  this  section,  so  far  as  it  elates  to  cumulative  voting,  shall 
not  apply  to  literary,  religious,  scientific,  social  or  benevolent 
societies,  having  no  capital  stock  or  shares  unless  it  shall  be 
so  provided  in  their  by-laws  or  rules. 

History:  Enacted  March  21,  1S72;  amended  March  30.  1874. 
Code  Amdts.  1873-4,  p.  202;  Feb.  1,  1878,  Code  Amdts.  1877-8,  p. 
78;  March  10,  1887,  Stats,  and  Amdts.  1SS7,  p.  95;  March  20,  1903, 
Stats,  and  Amdts.  1903,  p.  253. 

Ill 


§§308,309  CIVIL  CODE.  [Div.I,Pt.IV. 

§  308.  ORGANIZATION  OF  BOARD  OF  DIRECTORS, 
ETC.  [QUORUM.]  Immediately  after  their  election,  the 
directors  must  organize  by  the  election  of  a  president,  who 
must  be  one  of  their  number,  a  secretary,  and  treasurer. 
They  must  perform  the  duties  enjoined  on  them  by  law  and 
the  by-laws  of  the  corporation. 

[Quorum.]  A  majority  of  the  directors  is  a  sufficient  num- 
ber to  form  a  board  for  the  transaction  of  business,  and  every 
decision  of  a  majority  of  the  directors  forming  such  board, 
made  when  duly  assembled,  is  valid  as  a  corporate  act. 

History:     Enacted  March  21,  1872. 

§309.  DIVIDENDS  FROM  SURPLUS  PROFITS.  PEN- 
ALTY FOR  VIOLATION  OF  THIS  SECTION.  DIS- 
TRIBUTION OF  LAND,  WATER,  ETC.  The  directors  of 
corporations  must  not  miake  dividends,  except  from  the  sur- 
plus profits  arising  from  the  business  thereof;  nor  must  they 
create  any  debts  beyond  their  subscribed  capital  stock;  nor 
must  they  divide,  withdraw,  or  pay  to  the  stockholders,  or 
any  of  them,  any  part  of  the  capital  stock,  except  as  herein- 
after provided,  nor  reduce  or  increase  the  capital  stock,  ex- 
cept as  herein  specially  provided. 

For  a  violation  of  the  provisions  of  this  section,  the  di- 
rectors under  whose  administration  the  same  may  have  hap- 
pened (except  those  who  may  have  caused  their  dissent  there- 
from to  be  entered  at  large  on  the  minutes  of  the  directors 
at  the  time,  or  were  not  present  when  the  same  did  happen) 
are,  in  their  individual  or  private  capacity,  jointly  and  sev- 
erally liable  to  the  corporation,  and  to  the  creditors  thereof, 
to  the  full  amount  of  the  capital  stock  so  divided,  withdrawn, 
paid  out,  or  reduced,  or  debt  contracted;  and  no  statute  of 
limitation  is  a  bar  to  any  suit  against  such  directors  for  any 
sums  for  which  they  are  liable  by  this  section; 

[Land  and  water  companies.]  Provided,  however,  that 
where  a  corporation  has  been  heretofore  or  may  hereafter  be 
formed    for    the   purpose,   among   other   things,    of   acquiring, 

112 


Tit. I. ch. I. art. II.]  REMOVAL  OF  DIRECTORS.  §  310 

holding,  and  selling  real  estate,  water,  and  water  rights,  the 
directors  of  such  corporation  may,  with  the  consent  of  stock- 
holders representing  two  thirds  of  the  capital  stock  thereof, 
given  at  a  meeting  called  for  that  purpose,  divide  among  the 
stockholders  the  land,  water,  or  water  rights  so  by  such  cor- 
oration  held,  in  the  proportions  to  which  their  holdings  of 
such   slock  at  tht;   time   of  such   division   entitle  them. 

All  conveyances  made  by  the  corporation  in  pursuance  of 
this  section  must  be  made  and  received  subject  to  the  debts 
of  such  corporation  existing  at  the  date  of  the  conveyance 
thereof.  Nothing  herein  prohibits  a  division  and  distribu- 
tion of  the  capital  stock  of  any  corporation  which  remains 
after  the  payment  of  all  its  debts,  upon  its  dissolution,  or  the 
expiration   of  its  term  of  existence. 

History:  .  Enacted  March  21,  1S72;  amended  March  31.  1S91. 
Stats,  and  Amdts.  1891,  p.  46S;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  34  6,  held  uncon- 
stitutional; see  history,  §  4  ante;  re-enacted  March  21,  1905, 
Stats,  and  Amdts.   1905,  p.    558. 


5?  310.  REMOVAL  FROM  OFFICE  OF  DIRECTORS, 
ETC.  The  boa.rd  of  directors  maj-  be  removed  from  office 
by  a  vote  of  two  thirds  of  the  members,  or  of  stockholders 
holding  two  thirds  of  the  capital  stock,  at  a  general  meeting 
held  after  previous  notice  of  the  time  and  place,  and  of  the 
intention  to  propose  such  removal.  Meetings  of  stockholders 
for  this  purpose  may  be  called  by  the  president,  or  by  a  ma- 
jority of  the  directors,  or  by  members  or  stockholders  hold- 
ing at  least  one  half  of  the  votes.  Such  calls  must  be  in  writ- 
ing, and  addressed  to  the  secretary,  who  must  thereupon  give 
notice  of  the  Lime,  place,  and  object  of  the  meeting,  and  bj- 
whose  order  it  is  called.  If  the  secretary  refuses  to  give 
the  notice,  or  if  there  is  none,  the  call  may  be  addressed  di- 
rectlj'  to  the  members  or  stockholders,  and  be  served  as  a 
notice,  in  which  case  it  must  specify  the  time  and  place  of 
meeting.     The  notice  must  be  given  in  the  manner  provided 

113 


§§311,312  CIVIL   CODE.  [Div.I.Pt.lV. 

in  section  three  hundred  and  one  of  this  title,  unless  other 
express  provision  has  been  made  therefor  in  the  by-laws.  In 
case  the  board  of  directors  is  so  removed,  a  new  board  may 
be  elected  at  the  same  meeting. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  347,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March   21,  1905,  Stats,  and  Amdts.  1905,  pp.   558,   559. 

§311.  JUSTICE  OF  PEACE  MAY  ORDER  MEETING 
OF  CORPORATION,  WHEN.  Whenever,  from  any  cause, 
there  is  no  person  authorized  to  call  or  to  preside  at  a  meet- 
mg  of  a  corporation,  any  justice  of  the  peace  of  the  county 
where  such  corporation  is  established  may,  on  written  appli- 
cation of  three  or  more  of  the  stockholders  or  of  the  mem- 
bers thereof,  issue  a  warrant  to  one  of  the  stockholders  or 
members,  directing  him  to  call  a  meeting  of  the  corporation, 
by  giving  the  notice  required,  and  the  justice  may,  in  the 
same  warrant,  direct  such  person  to  preside  at  such  meet- 
ing until  a  clerk  is  chosen  and  qualified,  if  th^re  is  no  other 
officer  present  legally  authorized  to  preside  thereat.  The 
application  of  a  number  of  stockholders  less  than  three,  but 
holding  a  majority  of  the  capital  stock,  has  the  same  eflfect 
as  an  application  by  three  or  more  stockholders  or  mem- 
bers. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  347;  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,   1905,  Stats,  and  Amdts.   190'5,  p.   559. 


§312.  MAJORITY  OF  STOCK  MUST  BE  REPRE- 
SENTED AT  ELECTIONS,  AND  A  MAJORITY  VOTE 
TOGETHER.  OTHERWISE  VOIDABLE.  At  all  elections 
or  votes  had  for  any  purpose  in  corporations  formed  for 
profit  there  m.ust  be  a  majority  of  the  subscribed  capital  stock 
or  of  the  members  represented,  either  in  person  or  by  proxy 

114 


Tit.T.ch.I.art.II.J     ADJOURNING   MEETING.  §312[a] 

in  writing;  provided,  that  in  all  instances  of  corporations 
formed  for  purposes  other  than  profit  the  bj'-laws  shall  pro- 
vide the  number  of  members  or  stockholders  that  shall  con- 
stitute a  quorum  for  the  transaction  of  business.  Every  per- 
son acting  therein,  in  person  or  by  proxy  or  representative, 
must  be  a  member  thereof  or  a  stockholder,  having  stock  in 
his  own  name  on  the  stock  books  of  the  corporation  at  least 
ten  days  prior  to  the  election.  Any  vote  or  election  had  other 
than  in  accordance  with  the  provisions  of  this  article  is  void- 
able at  the  instance  of  absent  or  any  stockholder  or  mem- 
bers, and  may  be  set  aside  by  petition  to  the  superior  court 
of  the  county  where  the  same  is  held. 

[Meeting  may  adjourn  from  day  to  day.]  Any  regular  or 
called  meeting  of  the  stockholders  or  members  may  adjourn 
trom  day  to  da}^'  or  from  time  to  time,  if  for  any  reason  there 
is  not  present  a  majoritj'  of  the  subscribed  stock  or  members, 
or  no  election  had,  such  adjournment  and  the  reasons  there- 
for being  recorded  in  the  journal  of  proceedings  of  the  board 
of  directors. 

HLstory:  Enacted  March  21,  1S72;  amended  April  1,  1878,  Code 
Amdts.  1877-8,  p.  79;  amended  by  Code  Commission  Act  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  347,  held  unconstitutional, 
see  history,  §  69  ante;  amendment  re-enacted  March  21,  1905, 
Stats,  and  Amdts.  1905,  p.  559.  A  further  amendment  by  the 
Legislature  of  1905,  on  following  day  (March  22),  appears- 
in  "note"  below;  amendment  enacted  March  18,  1907,  Stats,  and 
Amdts.  1907,  p.  596,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  403. 

Note:  Section  312  was  amended  March  21,  1905,  and  also  on 
March  22,  1905,  numbered  respectively  §  312  and  §  312[a]  in 
Kerr's  Cyelopedie  and  Pocket  Code.s.  The  Legislature  of  1907 
repealed  §  312  as  amended  March  21,  1905,  and  amended  §  312[a] 
as  above,  and  numbered  it   §  312. 

§312  [a]  [SAME].  CORPORATIONS  OTHER  THAN 
FOR  PROFIT.  At  all  elections  or  votes  had  for  any  pur- 
pose in  corporations  formed  for  profit  there  must  be  a  ma- 
jority of  the  subscribed    capital    stock    or    of    the    members 

115 


§313  CIVIL    CODE.  [Div.I.Pt.IV. 

represented,  either  in  person  or  by  proxy  in  writing;  pro- 
vided, that  in  all  instances  ol  corporations  formed  for  pur- 
poses other  than  profit  the  by-laws  shall  provide  the  num- 
ber of  members  or  stockholders  that  shall  constitute  a 
quorum  lor  the  transaction  of  business.  Every  person  acting 
therein  (in  person  or  by  prcxj-  or  representative),  must  be 
a  member  thereof  or  a  bona  fide  stockholder,  having  stock 
in  his  own  name  on  the  stock-books  of  the  corporation  at 
least  ten  days  prior  to  the  election.  Any  vote  or  election 
had  other  than  in  accordance  with  the  provisions  of  this  art- 
icle is  voidable  at  the  instance  of  absent  (or  any)  stockhold- 
ers or  members,  and  may  be  set  aside  by  petition  to  the 
superior  court  of  the  county  where  the  same  was  held.  Any 
regular  or  called  meeting  of  the  stockholders  or  members 
may  adjourn  from  day  to  day,  or  froin  time  to  time,  if  for 
any  reason  there  is  not  present  a  majority  of  the  subscribed 
stock  or  members,  or  no  election  had,  such  adjournment  and 
the  reasons  therefor  being  recorded  in  the  journal  of  pro- 
ceedings of  the  board  of  directors. 

History;  Enactment.s  and  amendments  recited  in  section 
above.  This  amendment,  March  22,  1905,  Stats,  and  Amdts.  1905, 
p.  787. 


§313.  STOCK  OF  MINORS,  INSANE,  ETC.,  HOW 
REPRESENTED.  The  shares  of  stock  of  an  estate  of  a 
minor,  or  insane  person,  may  be  represented  by  his  guard- 
ian, and  of  a  deceased  person  by  his  executor  or  adminis- 
trator, and,  except  when  otherwise  agreed,  all  shares  of  stock 
standing  on  the  books  of  a  corporation  in  the  name  of -any 
person  as  pledgee  or  trustee,  may  be  represented  or  voted 
by  such  pledgee  or  trustee  only  when  such  pledgor  or  bene- 
ficial owner  fails  to  represent  and  vote  the  same. 

History:  Enacted  March  21,  1872;  amended  March  31,  1874, 
Code  Amdts.  1873-4.  p.  203;  March  9,  1911,  Stats,  and  Amdts. 
1911,   p.   318. 

116 


Tit.I.chJ.art.II.]     POSTPONING   ELECTION.  §§314,315 

§314.  ELECTION  MAY  BE  POSTPONED.  If  from 
any  cause  an  election  does  not  take  place  on  the  day  ap- 
pointed by  law  or  the  by-laws,  or  otherwise,  it  may  be  held 
on  any  day  thereafter  as  is  provided  for  in  such  by-laws, 
or  to  which  such  election  may  be  adjourned  or  ordered  by 
the  directors.  If  an  election  has  not  been  held  at  the  ap- 
pointed time,  and  no  adjourned  or  other  meeting  for  the  pur- 
pose nas  been  ordered  by  the  directors,  a  meeting  may  be 
called  by  the  stockholders  as  provided  in  section  three  hun- 
dred and  ten. 

Hislory:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  348,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March   21,  1905,  Stats,  and  Amdts.   1905,  p.  559. 


§315.  COMPLAINTS,  QUO  WARRANTO  AND  PRO- 
CEEDINGS    THEREON,     REGARDING     ELECTIONS. 

[NOTICE].  Upon  the  application  of  any  person  or  body 
corporate  aggrieved  by  any  election  held  by  any  corporate 
Ijody,  the  superior  court  of  the  county  in  which  such  elec- 
tion is  held  must  proceed  forthwith  to  hear  the  allegations 
and  proofs  of  the  parties,  or  otherwise  inquire  into  the  mat- 
ters of  complaint,  and  thereupon  confirm  the  election,  order 
?  new  one,  or  direct  such  other  relief  in  the  premises  as  ac- 
cords with  right  and  justice 

[Notice].  Upon  filing  the  petition,  and  before  any  further 
proceedings  are  had  under  this  section,  five  days'  notice  of 
the  hearing  must  be  given,  under  the  direction  of  the  court 
or  the  judge  thereof,  to  the  adverse  party,  or  those  to  be 
affected  thereby. 

Historj':  Enacted  March  21,  1872;  amended  April  1,  1878, 
Code  Amdts.  1877-8,  p..  79;  amended  by  Cpde  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  248,  held  unconstitu- 
tional; see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.   560. 

117 


§§316-319  CIVIL  CODE.  [Div.I.Pt.IV. 

§316.     DAMAGES  FOR  FALSE  ENTRIES,  ETC.     Any 

officer  of  a  corporation  who  wilfully  gives  a  certificate,  or 
wilfully  makes  an  official  report,  public  notice,  or  entry  in 
any  of  the  records  or  books  of  the  corporation,  concerning 
the  corporation  or  its  business,  which  is  false  in  any  material 
representation,  shall  be  liable  for  all  the  damages  resulting 
therefrom  to  any  person  injured  thereby,  and  if  two  or  more 
officers  unite  or  participate  in  the  commission  of  any  of  the 
acts  herein  designated,  they  shall  be  jointly  and  severally 
liable. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1S73-4,  p.  203. 

§317.  MEETING  BY  CONSENT  TO  BE  VALID. 
[WRITTEN  WAIVER.]  When  all  the  stockholders  or 
members  of  a  corporation  are  present  at  any  meetmg  how- 
ever called  or  notified,  and  sign  a  written  consent  thereto 
on  the  records  of  such  meetings,  or  if  those  not  present  sign 
in  writing  a  waiver  of  notice  of  such  meeting,  which  waiver 
is  presented  and  made  a  part  of  the  records  of  such  meeting, 
the  doings  of  such  meeting  are  as  valid  as  if  had  at  a  meet- 
ing legally  called  and  noticed. 

History:  Enacted  March  21.  1872;  amended  February  22,  1909, 
Stats,  and  Amdts.  1909,  p.   49. 

§318.  PROCEEDINGS  AT  MEETING  TO  BE  BIND- 
ING. The  stockholders  or  members  of  such  corporation, 
when  so  assembled,  may  elect  officers  to  fill  all  vacancies  then 
existing,  and  may  act  upon  such  other  business  as  might  law- 
fully be  transacted  at  regular  meetings  of  the  corporation. 

History:     Enacted  March  21,  1872. 

§319.     MEETINGS,  WHERE  HELD.     The  meetings   of 

the   stockholders  and  board  of    directors    of    a  corporation 

must  be  held  at  its  office  or  principal  place  of  business. 
History:     Enacted  March  21,  1872. 

118 


Tit.I,ch.I,art.II.]      SPECIAL  MEETINGS— NOTICE.       §§320-321 

§320.  WHEN  NO  PROVISION  IN  BY-LAWS  FOR 
REGULAR  MEETINGS,  SPECIAL  MEETINGS,  HOW 
CALLED.  [NOTICE].  When  no  provision  is  made  in  the 
by-laws  for  regular  meetings  of  the  directors  and  the  mode 
of  calling  special  meetings,  all  meetings  must  be  called  by 
special  notice  in  writing,  to  be  given  to  each  director  by  the 
secretary,  on  the  order  of  the  president,  or  if  there  be  none, 
on  the  order  of  two  directors. 

History:     Enacted  March  21,  1872. 

§320a.  WAIVER  OF  NOTICE  OF  CORPORATION 
MEETING.  When  all  the  directors  of  a  corporation  are 
present  at  any  directors'  meeting,  however  called  or  noticed, 
and  sign  a  written  consent  thereto,  on  the  record  of  such 
meeting,  or  if  the  majority  of  the  directors  are  present,  and 
if  those  not  present  sign  in  writing  a  waiver  of  notice  of  such 
meeting,  which  waiver  is  presented  and  made  a  part  of  the 
records'  of  such  meeting,  the  transactions  of  such  meeting- 
are  as  valid  as  if  had  at  a  meeting  regularly  called  and 
noticed. 

History:  Enactment  approved  May  29,  1915,  Stats,  and  Amdts. 
1915,  p.  939.     In  effect  August  8,  1915. 

§321.  CERTAIN  BOOKS  TO  BE  OPEN  FOR  IN- 
SPECTION. Every  corporation  doing  a  banking  business 
in  this  state  must  keep  in  its  office,  in  a  place  accessible  to 
the  stockholders,  depositors,  and  creditors  thereof,  and  for 
their  use,  a  book  containing  a  list  of  all  stockholders  in  such 
corporation,  and  the  number  of  shares  of  stock  held  by  each, 
and  every  such  corporation  must  keep  posted  in  its  office,  in 
a  conspicuous  place,  accessible  to  the  public  generally,  a 
notice,   signed   by   the   president   or   secretary,    showing: 

1.  The  names  of  the  directors  of  such  corporation. 

2.  The  number  and  value  of  shares  of  stock  held  by  each 
director. 

119 


§321a  CIVIL  CODE.  [Div.I,Pt.IV. 

The  entries  on  such  book  and  such  notice  shall  be  made 
and  posted  within  twenty-four  hours  after  any  transfer  of 
stock,  and  shall  be  conclusive  evidence  against  each  director 
and  stockholder  of  the  number  of  shares  of  stock  held  by 
each.  The  provisions  of  this  section  shall  apply  to  all  bank- 
ing corporations  formed  or  existing  before  twelve  o'clock 
noon  of  the  day  on  which  this  code  took  effect,  as  well  as 
to  those  formed  after  such  time. 

History:     Enacted  Jan.   29,  1876,  Code  Amdt.s.   1875-6,  p.  72. 

§321a.  CHANGE  OF  PRINCIPAL  PLACE  OF  BUSI- 
NESS, PROCEDURE.  Every  corporation  that  has  been  or 
may  be  created  under  the  general  laws  of  this  state  may 
change  its  principal  place  of  business  from  one  place  to  an- 
other in  the  same  county,  or  from  one  city  or  county  to 
another  city  or  county  within  this  state.  Before  such  change 
is  made,  the 

Consent  in  writing,  of  the  holders  of  two  thirds  of  the 
capital  stock  of  the  corporation  must  be  obtained  and  filed 
in  Its  office.  When  such  consent  is  obtained  and  filed,  notice 
of  the  intended  removal  or  change  must  be  published,  ai 
least  once  a  week,  for  three  successive  weeks,  in  some  news- 
paper published  in  the  county  wherein  said  principal  place 
of  business  is  situated,  if  there  is  one  published  therein;  if 
not,  in  a  newspaper  of  an  adjoining  county,  giving  the  name 
of  the  county  or  city  where  it  is  situated  and  that  to  which 
it  is  intended  to   remove   it. 

[Copy  of  resolution,  etc.,  to  be  filed.]  Whenever  any  such 
change  is  made,  a  cop3'  of  the  resolution  or  action  of  the 
board  of  directors  authorizing  the  same  together  with  a  copj' 
of  an  affidavit  of  the  publication  above  required,  all  duh- 
certified  by  the  president  and  secretarj-  of  the  corporation 
with  the  corporate  seal  affixed  shall  be  filed  in  each  office 
where  the  original  articles  of  incorporation  are,  or  any  copy 
thereof  is  required  to  be  filed. 

120 


Tit.I,ch.I,art.II.]STOCKHOLDERS'   MEETING.  §  321b 

[Removal  of  location  in  same  town.]  This  section  shall 
not  be  construed  to  require  such  consent,  notice  or  publica- 
tion in  the  case  of  any  such  removal  from  one  location  to 
another  in  the  same  city,  town  or  village. 

HLstory:  Enacted  April  3,  1876  (as  §  321),  Code  Amdts.  1S75-6, 
p.  73;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  348,  held  unconstitutional;  see  history,  §  4 
ante;   re-enacted  March   20,   1903,   Stats,  and  Amdts.   1903,  p.   254. 

§321b.  STOCKHOLDERS'  MEETINGS,  WHO  MAY 
VOTE  AT.  PROXIES,  VOID  WHEN;  MAXIMUM  PE- 
RIOD OF;  REVOCABLE.  At  all  meetings  of  stockholders 
of  corporations  organized  under  the  laws  of  this  state,  or  in 
the  case  of  corporations  having  no  capital  stock,  then  at  all 
meetings  of  the  members  of  such  corporation,  only  the  stock- 
holders or  members  actuall}'  present  shall  be  entitled  to  vote 
on  any  proposition,  including  the  election  of  directors  and 
other  officers  of  the  corporation,  unless  proxies  from  absent 
or  non-attendmg  stockholders  or  members  shall  be  held  by 
some  person  or  persons  present  at  such  meeting  and  shall  be 
executed  in  accordance  with  the  provisions  of  this  section. 

[Proxy.]  Every  such  proxy  must  be  executed  in  writing 
by  the  member  or  stockholder  himself,  or  by  his  duly  au- 
thorized attorney.  No  proxy  heretofore  given  or  made  shall 
be  valid  after  the  expiration  of  eleven  months  from  the  pas- 
sage of  this  act,  unless  the  member  or  stockholder  executing 
it  shall  have  specified  therein  the  length  of  time  for  which 
such  proxy  is  to  continue  in  force,  which  must  be  for  some 
limited  period,  and  in  no  case  to  exceed  seven  years  from 
the  date  of  the  execution  of  such  proxy.  No  proxy  hereafter 
to  be  given  or  made  shall  be  valid  aft^r  the  expiration  of 
eleven  months  from  the  date  of  its  execution,  unless  the  mem- 
ber or  stockholder  executing  :l  shall  have  specified  therein 
the  length  of  time  for  which  such  proxj-  is  to  continue  in 
iorce,  which  must  be  for  some  limited  period,  and  ir  no  case 
to  exceed  seven  years  from  the  date  of  the  execution  of  such 
proxy. 

121 


§321b  CIVIL  CODE.  [Div.I.Pt.TV. 

[Revocation  of  proxy.]  Every  proxy  shall  be  revocable  at 
the  pleasure  of  the  person  executing  it;  but  a  corporation  hav- 
ing no  capital  stock  may  prescribe  in  its  by-law^s  the  persons 
who  may  act  as  proxies  for  members,  and  the  length  of  time 
for  which  such  proxies  may  be  executed.  Executors,  admin- 
istrators, guardians  and  trustees  may  give  yioxies. 

History:  Enacted  February  27,  1905,  Stats,  and  Amdts.  1905, 
p.  22;  amended  May  20,  1913,  Stats,  and  Amdts.  1913,  p.  230.  In 
eflfeot   August   10,   1913. 


122 


Tit.I,ch.II,art.l.]  STOCKHOLDERS'    LIABILITY.  §322 


CHAPTER  II. 

CORPORATE  STOCK. 

Article  I.     Stock  and  Stockholders,  §§322-328. 
II.     Assessment  of  Stock,  §§331-349. 


ARTICLE   I. 

STOCK   AND  STOCKHOLDERS. 

§  322.  Liability  of  stockholders;  released  when;  how  deter- 
mined;  trust  fund  not  liable;  stock  held  as  collateral. 

§  323.      Certificates,  how  and  when  issued. 

§  324.  Shares  of  stock,  personal  property;  how  transferred.  Ir- 
rigation  stock  appurtenant  to  lands. 

§  32-5.  Married  woman  may  transfer  stock;  dividends  paid  to 
her;   her  proxy. 

§  326.     Affidavit  or  bond  may  be  required  before  transfer. 

§  327.  Contracts  to  relieve  directors  from  liabilities  fixed  by 
constitution   void. 

§  328.  Lost,  etc.,  certificate;  action  for  new  certificate;  parties; 
procedure. 

§  329.     Burned   bonds,  procedure   to   obtain   duplicates. 

§  322.  LIABILITY  OF  STOCKHOLDERS;  RELEASED 
WHEN;  HOW  DETERMINED;  TRUST  FUND  NOT  LI- 
ABLE; STOCK  HELD  AS  COLLATERAL.  Each  stock- 
holder of  a  corporation  is  individually  and  personally  liable 
for  such  proportioii  of  all  its  debts  and  liabilities  contracted 
or  incurred  during  the  time  he  w^as  a  stockholder  as  the 
amount  of  stock  or  shares  owned  by  him  bears  to  the  whole 
of  the  subsciibcd  capital  stock  or  shares  of  the  corporation. 

Any  creditor  of  the  corporation  may  institute  joint  or  sev- 
eral actions  against  any  of  its  stockholders,  for  the  propor- 
tion  of   his   claim   payable   by   each,   and   in   such   action    the 

123 


%Z22  CIVIL  CODE.  [Div.I.Pt.IV. 

court  must  ascertain  the  proportion  of  the  claim  or  debt  tor 
which  each  defendant  is  liable,  and  a  several  judgment  must 
be    rendered   against   each,   in    conformity   therewith. 

If  any  stockholder  pays  his  proportion  of  any  debt  due 
from  the  corporation,  incurred  while  he  was  such  stock- 
holder, he  is  relieved  from  any  further  personal  liability  tor 
such  debt,  and  if  an  action  has  been  brought  against  him 
upon  such  debt,  it  must  be  dismissed,  as  to  him,  upon  his 
paying  the  :osts,  or  such  proportion  thereof  as  may  be 
properly  chargeable  against  him. 

The  liabihty  of  each  stockholder  is  determined  by  the 
amount  of  stock  or  shares  owned  by  him  at  the  time  the  debt 
or  liability  was  incurred;  and  such  liability  is  not  released  by 
any  subsequent  transfer  of  stock. 

The  term  stockholder,  as  used  in  this  section,  applies  not 
only  to  such  persons  as  appear  by  the  books  of  the  corpor- 
ation to  be  such,  but  also  to  every  equitable  owner  of  stock, 
although  the  same  appears  on  tiie  books  in  the  name  of  an- 
other; and  also  to  every  person  who  has  advanced  the  instal- 
ments or  purchase  monej'  of  stock  in  the  name  of  a  minor, 
so  long  as  the  latter  remains  a  minor;  and  also  to  every 
guardian,  or  other  trustee,  who  voluntarily  invests  any  trust 
funds  in  the  stock. 

Trust  funds  in  the  hands  of  a  guardian,  or  trustee,  are  not 
liable  under  the  provisions  of  this  section,  by  reason  of  any 
such  investment;  nor  must  the  person  for  whose  benefit  the 
investment  is  made  be  responsible  in  respect  to  the  stock 
until  he  becomes  competent  and  able  to  control  the  same; 
but  the  responsibility  of  the  guardian  or  trustee  making  the 
investment  continues  until  that  period. 

Stock  held  as  collateral  security,  or  by  a  trustee,  or  in  any 
other  representative  capacity,  does  not  make  the  holder  there- 
of a  stockholder  within  the  meaning  of  this  section,  except 
in  the  cases  above  mentioned,  so  as  to  charge  him  with  any 
proportion  of  the  debts  or  liabilities  of  the  corporation;  but 

124 


Tit.I,ch.II,art.I.]  CERTIFICATES  OF  STOCK.  §  323 

the  pledgeor,  or  person  or  estate  represented,  is  to  be  deemed 
the  stockholder,  as  respects  such  liability. 

In  a  corporation  having  no  capital  stock,  each  member  is 
individually  and  personally  liable  for  an  equal  share  of  its 
debts  and  liabilities,  and  similar  actions  may  be  brought 
against  him,  either  alone  or  jointly  with  other  members,  to 
enforce  such  liability  as  by  this  section  may  be  brought 
against  one  or  more  stockholders,  and  similar  judgmetits  may 
be  rendered. 

[Foreign  corporations — Liability  of  stockholders.]  The  li- 
a])ility  of  each  stockholder  of  a  corporation  formed  under 
the  laws  of  any  other  state  or  territory  of  the  United  States, 
or  of  any  foreign  country,  and  doing  business  within  this 
state,  is  the  same  as  the  liabilitj'-  of  a  stockholder  of  a  cor- 
poration created  under  the  constitution  and  laws  of  this  state. 

History:  Enacted  March  2],  1872;  amended  March  30,  1874, 
Code  Ai-ndt.s.  1873-4,  p.  203;  March  15,  1876,  Code  Amdts.  1875-6, 
p.  73;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  349,  held  unconstitutional;  see  history,  §  4 
ante;  amendment  re-enacted  March  20,  1905,  Stats,  and  Amdts. 
1905,  p.  396. 


§323.  CERTIFICATES  OF  STOCK,  HOW  AND 
WHEN  ISSUED.  All  corporations  for  profit  must  issue  cer- 
tificates for  stock  when  fully  paid  up,  signed  by  the  presi- 
dent and  secretary,  and  may  provide,  in  their  by-laws,  for 
ssuing  certificates  prior  to  full  paj-ment,  under  such  restric- 
tions and  for  such  purposes  as  their  by-laws  may  provide, 
but  any  certificate  issued  prior  to  full  payment  must  show  on 
its  face  what  amount  has  been  paid  thereon.  All  certificates 
of  stock  issued  by  corporations  authorized  by  their  articles 
of  incorporation  to  issue  stocks  of  different  classes,  shall  ex- 
press upon  their  face  the  character  of  stock  represented  by 
said  ceriificates.  The  said  certificates  shall  also  state  the 
number  of  shares  of  stock  of  each  class  which  said  corpora- 
tion is  authorized  to  issue,  and  the  said  certificates  shall  also 

125 


§324  CIVIL   CODE.  [Div.I,Pt.IV. 

contain  a  statement  of  the  nature  and  extent  of  the  prefer- 
ence granted  to  the  preferred  stock. 

History:  Enacted  March  12,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  350,  held 
unconstitutional,  see  history,  §  69  ante;  amendment  re-enacted 
March  20,  1905,  Stats,  and  Amdts.  1905,  p.  397;  amended  March 
IS,  1907,  Stats,  and  Amdts.  1907,  p.  348,  Kerr's  Stats,  and  Amdts. 
1906-7,  p.  403. 


§  324.  SHARES  OF  STOCK,  PERSONAL  PROPERTY; 
HOW  TRANSFERRED.  IRRIGATION  STOCK  APPUR- 
TENANT TO  LAND.  Whenever  the  capital  stock  of  any 
corporation  is  divided  into  shares,  and  certificates  therefor 
are  issued,  such  shares  of  stock,  except  as  hereinafter  pro- 
vided, are  personal  property,  and  may  be  transferred  by  in- 
dorsement by  signature  of  the  proprietor,  his  agent,  attorney, 
or  legal  representative,  and  the  delivery  of  the  certificate; 
but  such  transfer  is  not  valid,  except  as  to  the  parties  thereto, 
until  the  same  is  so  entered  upon  the  books  of  the  corpora- 
tion as  to  show  the  names  of  the  parties  by  whom  and  to 
whom  transferred,  the  number  of  the  certificate,  the  number 
or  designation  of  the  shares,  and  the  date  of  the  transfer. 

[Water  companies — Stock  appurtenant  to  land.]  Provided, 
however,  that  any  corporation  organized  for,  or  engaged  in 
the  business  of  selling,  distributing,  supplying,  or  delivering 
water  for  irrigation  purposes  or  for  domestic  use.  may  in  its 
by-laws  provide  that  water  shall  only  be  sold,  distributed, 
supplied,  or  delivered  to  owners  of  its  capital  stock,  and  that 
such  stock  shall  be  appurtenant  to  certain  lands  when  the 
same  are  described  in  the  certificate  isstied  therefor;  and 
when  such  certificate  shall  be  so  issued,  and  a  certified  copy 
of  such  by-law  recorded  m  the  office  of  the  county  recorder 
in  the  county  where  such  lands  are  situated,  the  shares  of 
stock  so  located  on  any  land  shall  only  be  transferred  with 
said  lands,  and  shall  pass  as  an  appurtenance  thereto.  When- 
ever any  officer  of  any  corporation  shall  refuse  to  make  en- 

126 


Tit.I,cli.TI.art.I.]MAPvniED  women— STOCK.  §323 

tries  upon  the  books  thereof,  or  to  transfer  stock  therein,  or 
to  issue  a  certificate  or  certificates  therefor  to  the  transferee 
as  provided  by  this  and  the  next  preceding  section,  such 
officer  shall  l)e  suliject  to  a  penalty  of  four  hundred  dollars, 
to  be  recovered  as  liquidated  damages,  in  an  action  brought 
against  him  by  the  person  aggrieved. 

History:  Enacted  March  21,  1872;  amended  March  26,  1895, 
Stats,  and  Amdts.  189.^,  p.  118;  amended  March  22,  1907,  Stats, 
and  Amdts.   1907,  p.   854,  Kerr's  Stats,  and  Amdts.   1906-7,  p.   404. 

This  section  traceable  to  Act  April  22,  1850,  §  12  (Weston  vs. 
Bear  River  &  Auburn  W.  &  M.  Co.,  5  Cal.  186,  187,  63  Am.  Dec. 
117;  Winter  vs.  Belmont  Min.  Co.,  53  Cal.  428,  431);  the  Act  of 
1853  did  not  substantially  alter  §  12  (Weston  vs.  Bear  River  & 
Auburn  W.  &  M.  Co.,  6  Cal.  425,  429);  as  to  effect  of  amendatory 
act  of  1854    (p.   84)   see  People  vs.   Crockett,   9  Cal.   112,  114. 

Wisconsin  adopted  their  statute  from  this  section  of  the  code. 
— See  In  re  Application  of  Murphy,  51  Wis.  519,  8  N.  W.  Rep.  419, 
420,  421. 


§325.  MARRIED  WOMAN  MAY  TRANSFER  STOCK; 
DIVIDENDS  PAID  TO  HER;  HER  PROXY.  Shares  of 
stock  in  corporations  standing  on  the  books  of  the  corpora- 
tion in  the  name  of  a  married  woman  may  be  transferred  by 
her,  her  agent  or  attorney,  without  the  signature  of  her  hus- 
band, and  in  the  same  manner  as  if  such  married  woman  were 
a  feme  sole.     All  dividends  payable  upon  any  of  such  shares 

of  stock  may  be  paid  to  her,  her  agent  or  attorney,  in  the 
same  manner  as  if  she  were  unmarried;  and  any  proxj^  or 
power  given  by  her,  touching  any  of  such  shares,  is  valid 
and  binding,  and  neither  it  nor  any  receipt  for  dividends 
need  be  signed  by  her  husband. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  350, 
held  unconstitutional;  see  history,  §  4  ante;  amendment  re- 
enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p.  397. 

127 


§§326,327  CIVIL  CODE.  [Div.I.Pt.IV. 

§326.  AFFIDAVIT  OR  BOND  MAY  BE  REQUIRED 
BEFORE  TRANSFER.  When  the  shares  of  stock  in  a  cor- 
poration are  owned  by  parties  residing  out  of  the  state,  the 
president,  secretary,  or  directors  of  the  corporation,  before 
entering  any  transfer  of  the  shares  on  its  books,  or  issuing 
a  certificate  therefor  to  the  transferee,  may  require  from  the 
attorney  or  agent  of  the  non-resident  owner,  or  from  the 
person  claiming  under  the  transfer,  an  affidavit  or  other  evi- 
dence that  the  non-resident  owner  was  alive  at  the  date  of 
the  transfer,  and  if  such  affidavit  or  other  satisfactory  evi- 
dence be  not  furnished,  may  require  from  the  attorney,  agent, 
or  claimant,  a  bond  of  indemnity,  with  two  sureties,  satis- 
factory to  the  officers  of  the  corporation;  or,  if  not  so  satis- 
factory, then  one  approved  by  a  judge  of  the  superior  court 
of  the  county  in  which  the  principal  office  of  the  corporation 
IS  situated,  conditioned  to  protect  the  coporation  against  any 
liability  to  tj"ie  legal  representatives  of  the  owner  of  the 
shares,  in  case  of  his  or  her  death  before  the  transfer;  and 
if  such 

Affidavit  or  other  evidence  or  bond  be  not  furnished  when 
required  as  herein  provided,  neither  the  corporation  nor  any 
officer  thereof  shall  be  liable  for  refusing  to  enter  the  trans- 
fer on  the  books  of  the  corporation. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1S73-4,  p.  205;  Feb.  16,  1883,  Stats,  and  Amdts. 
1883,  p.   4.     In  force  Feb.  16,  1883. 

§327.  CONTRACTS  TO  RELIEVE  DIRECTORS 
FROM  LIABILITIES  FIXED  BY  CONSTITUTION 
VOID.  Any  contract  or  contracts,  verbal  or  written,  here- 
after made,  whereby  it  is  sought  directly  or  indirectly  to  re- 
lieve any  director  or  trustee  of  any  corporation  or  joint 
stock  association  from  any  liability  imposed  by  section  three, 
of  article  twelve  of  the  constitution  of  California,  are  hereby 
declared  to  be  and  shall  be  null  and  void. 

History:  Enacted  April  12,  1880,  Code  Amdts.  1880,  p.  9.  In 
force  April   12,   1880. 

128 


Tit.I.ch.lI.art.I.]  LOST    CERTIFICATE.  §328 

§328.  LOST,  ETC.,  CERTIFICATE;  ACTION  FOR 
NEW  CERTIFICATE;  PARTIES;  PROCEDURE.  When- 
ever a  certificate  of  stock  or  of  shares  in  a  corporation  or- 
ganized under  the  laws  of  this  state  has  been  lost,  destroyed 
or  wrongfully  withheld,  the  owner  thereof  may  bring  an 
action  against  such  corporation  in  the  superior  court  of  the 
county  in  which  is  located  its  principal  place  of  business,  for 
the  purpose  of  obtaining  a  new  or  duplicate  certificate.  If 
by  the  books  of  the  corporation  the  stock  stands  in  the  name 
of  a  person  other  than  the  plaintiff,  or  if  by  such  books  it 
appears  that  some  other  person  claims  or  has  some  right, 
title,  or  interest  in,  or  lien  upon,  such  stock,  all  such  per- 
sons must  be  made  parties  defendant  with  the  corporation. 

[Summons  and  notice.]  Summons  must  be  issued  and 
served  as  in  other  civil  actions,  and  in  addition  thereto,  tne 
court  must  direct  its  clerk  to  issue  and  cause  to  be  published, 
at  least  once  a  week  for  four  successive  weeks,  in  some 
newspaper  published  in  the  county,  a  notice  setting  forth 
the  pendency  of  the  action,  the  names  of  the  parties  thereto, 
the  court  in  which  it  is  pending,  the  name  of  the  corporation 
issuing  the  stock,  the  number  of  the  certificate  and  the  num- 
ber of  the  shares,  the  name  of  the  person  mentioned  as  stock- 
holder in  the  certificate,  and  notifying  all  persons  claiming 
said  shares,  or  any  of  them,  or  any  interest  or  lien  therein 
or  thereupon,  to  be  and  appear  before  the  court  at  a  time 
and  place  to  be  designated  in  the  notice  not  less  than  thirty 
days  from  the  first  publication  thereof,  then  and  there  to 
show  cause  why  a  new  certificate  should  not  be  directed  to 
be  issued  to  the  plaintiff,  and  to  set  forth  their  rights  in  or 
claim  to  such  shares. 

[Proceeding  on  answer — Judgment]  If  any  one  appears 
and  answers  or  intervenes  in  the  action,  it  must  proceed  to 
trial  as  in  other  civil  cases,  and  the  court  must  enter  judg- 
ment as  from  the  facts  established  may  be  proper;  but  if  no 
one  appears  within  the  time  designated  in  such  notice,  nor 
within    the    time    allowed    by    law   after   the    service   of   such 

5  129 


§329  ,    CIVIL   CODE.  [Div.I,Pt.IV. 

Bummons,  the  court  must  hear  such  evidence  as  may  be  of- 
fered in  support  of  the  allegations  of  the  complaint,  and  make 
and  file  its  decision  thereon,  and  thereupon  may  enter  its 
judgment  cancelmg  the  lost,  destroyed  or  wrongfully  with- 
held certificate  and  directing  the  corporation,  upon  payment 
to  it  of  all  costs  incurred  by  it  in  the  premises  and  without 
costs  against  the  corporation,  to  issue  to  the  plaintiff  a  new 
or  duplicate  certificate. 

After  the  issuing  of  a  new  certificate  by  the  corporation 
pursuant  to  any  judgment  in  such  action,  no  action  can  ever 
be  maintained  by  any  person  against  the  corporation  in  ref- 
erence to  said  lost  or  destroyed  certificate  or  the  shares  rep- 
resented thereby,  and  thereafter  any  such  action  is  forever 
barred  as  against  the  corporation. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
500. 


§329.  BURNED  BONDS,  PROCEDURE  TO  OBTAIN 
DUPLICATES.  Whenever  a  bond  or  bonds  of  a  corpora- 
tion organized  under  the  laws  of  this  state  or  of  any  other 
state,  or  any  territory  of  the  United  States  has  or  have  been 
lost  or  destroyed  in  this  state  by  fire,  earthquake,  or  other 
calamity,  the  owner  thereof  may  bring  an  action  against  such 
corporation  and  the  trustee  or  mortgagee  of  such  bonded  in- 
debtedness in  the  superior  court  of  the  county  in  which  such 
bond  or  bonds  were  lost  or  destroyed,  or  in  which  owner 
resides,  or  in  which  is  located  the  principal  place  of  business 
of  such  corporation  for  the  purpose  of  obtaining  a  new  or 
duplicate  bond  or  bonds.  If  said  bond  or  bonds  stand  in  the 
name  of,  or  are  registered  in  the  name  of  a  person  other  than 
the  plaintiff,  or  if  it  appears  by  the  books  of  the  corporation 
that  any  other  person  claims  or  has  some  right,  title,  interest 
in,  or  lien  upon  such  bond  or  bonds,  all  such  persons  must 
be  made  parties  defendant  with  the  corporation  and  the 
trustee  and  mortgagee. 

130 


Tit. I, ch. II, art. I.]    BURNED  BONDS — DUPLICATES.  §329 

[Form  of  summons.]  Summons  must  be  issued  and  served 
as  in  other  civil  actions  and  in  addition  thereto  the  court 
must  direct  its  clerk  to  issue  and  cause  to  be  published  at 
least  once  a  week,  for  four  successive  weeks,  in  some  news- 
paper published  in  the  county  a  notice  seting  forth  the  pend- 
ency of  the  action,  the  names  of  the  parties  thereto,  the  court 
m  which  it  is  pending,  the  name  of  the  corporation  which  had 
issued  the  bond  or  bonds,  the  number  of  said  bond  or  bonds, 
if  any,  and  the  amount  thereof,  and  the  person  in  whose  name 
the  same  stands  or  is  registered,  and  notifying  all  persons 
claiming  said  bond  or  bonds,  or  any  of  them  or  any  interest 
or  lien  therein  or  thereupon,  to  be  and  appear  before  the 
court  at  a  time  and  place  to  be  designated  in  the  notice,  not 
less  than  thirty  days  from  the  first  publication  thereof,  then 
and  there  to  show  cause  why  a  new  bond  or  bonds  should  not 
be  directed  to  be  issued  to  the  plaintiff  and  to  set  forth  their 
rights  in,  or  claims  to  such  bond  or  bonds.  If  any  one  ap- 
pears and  answers  or  intervenes  in  the  action  it  must  pro- 
ceed to  trial  as  in  other  civil  cases  and  the  court  must  en- 
ter judgment  as  from  the  facts  established  may  be  proper; 
but  if  no  one  appears  within  the  time  designated  in  said  not- 
ice, nor  within  the  time  allowed  by  law  after  the  service  of 
such  summons,  the  court  must  hear  such  evidence  as  may  be 
offered  in  support  of  the  allegations  of  the  complaint  and 
make   and   file   its   decision  thereon. 

[Entry  of  judgment — Indemnity.]  And  thereupon  may  en- 
ter its  judgment  canceling  the  lost  or  destroyed  bond  or 
bonds  and  directing  such  corporation,  upon  payment  to  it 
of  all  costs  incurred  by  it  in  the  premises,  and  upon  payment 
to  it  of  the  money  required  and  necessary  to  re-issue  new 
bond  or  bonds  and  without  costs  against  the  corporation  or 
other  defendant,  mortgagee  or  trustee;  to  issue  to  the  plain- 
tiff a  new  or  duplicate  bond  or  bonds  upon  the  said  plaintiff 
giving  proper  indemnity  to  the  said  corporation  and  the  said 
mortgagee  or  trustee. 

History:  Enacted  March  6,  1907,  Stats,  and  Amdts.  1007,  p. 
116,  Kerr's  Stats,  and  Amdts.   190G-7,  p.  404. 

131 


§§331,332  CIVIL  CODE.  [Div.I.Pt.IV. 


ARTICLE  II. 

ASSESSMENT  OF  STOCK. 

§  331.  Assessments,  how  levied. 

§  332.  Limitation.      How   levied. 

§  333.  Levy   of  assessment.      Old   assessment   remaining   unpaid. 

§  334.  What   order  shall  contain. 

§  335.  Notice    of   assessment.      Form. 

§  336  Publication   and  service   of  notice. 

§  337.  Delinquent  notice.      Form. 

§  338.  Contents   of  notice. 

§  339  How  published. 

§  340.  Jurisdiction   acquired,  how. 

§  341.  Sale   to  be  by  public  auction. 

§  342.  Highest  bidder   to  be  purchaser. 

§  343.  In   default   of  bidders,   corporation   may  purchase. 

§  344.  Disposition   of  stock  purchased  by  corporation. 

§  345.  Extension    of   time   of   delinquent   sale.      [Notice]. 

§  346.  Assessments  shall  not  be  invalidated. 

§  347.  Action  for  recovery  of  stoclt,  and  limitation   thereof. 

§  348.  Proofs  of  publication  and  sale. 

§  349.  Waiver  of  sale.     Action   to  recover   assessment. 

§331.  ASSESSMENTS,  HOW  LEVIED.  The  directors 
of  any  corporation  formed  or  existing  under  the  laws  of  this 
state,  after  one  fourth  of  its  capital  stock  has  been  sub- 
scribed, may,  for  the  purpose  of  paying  expenses,  conduct- 
ing business,  or  paying  debts,  levy  and  collect  assessments 
upon  the  subscribed  capital  stock  thereof,  in  the  manner  and 
form'  and  to  the  extent  provided  herein. 

History:  Enacted  March  21.  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  ^.   206. 

§332.  LIMITATION.  HOW  LEVIED.  No  one  assess- 
ment must  exceed  ten  per  cent  of  the  amount  of  the  capital 
stock  named  in  the  articles  of  incorporation,  except  in  the 
cases   in   this   section   otherwise   provided  for,   as   follows: 

132 


Tit.I.ch.II.art.IL]  LEVY   OF  ASSESSMENT.  §§333,334 

1.  If  the  wliole  capital  of  a  corporation  has  not  been  paid 
up,  and  the  corporation  is  unable  to  meet  its  liabilities  or  to 
satisfy  the  claims  of  its  creditors,  the  assessment  may  be  for 
the  full  amount  unpaid  upon  the  capital  stock;  or  if  a  less 
amount  is  sufficient,  then  it  may  be  for  such  a  percentage 
as  will  raise  that  amount; 

2.  The  directors  of  railroad  corporations  may  assess  tne 
capital  stock  in  mstalments  of  not  more  than  ten  per  cent 
per  month,  unless  in  the  articles  of  incorporation  it  is  other- 
wise provided; 

3.  The  directors  of  fire  or  marine  insurance  corporations 
maj"  assess  such  a  percentage  of  the  capital  stock  as  they 
deem  proper. 

History:     Enacted  March  21,  1872. 


§333.  LEVY  OF  ASSESSMENT.  OLD  ASSESSMENT 
REMAINING  UNPAID.  Xo  assessment  must  be  levied 
while  any  portion  of  a  previous  one  remains  unpaid,  unless: 

1.  The  power  of  the  corporation  has  been  exercised  in  ac- 
cordance with  the  provisions  of  this  article  for  the  purpose 
of  collecting  such  previous  assessment; 

2.  The  collection  of  the  previous  assessment  has  been  en- 
joined; or 

3.  The  assessment  falls  within  the  provisions  of  either  the 
first,  second,  or  third  subdivision  of  section  332. 

History:     Enacted  March  21.  1872. 


§  334.     WHAT  ORDER  SHALL  CONTAIN.  Every  order 

levying  an  assessment  must  specify  the  amount  thereof, 
when,  to  whom,  and  where  payable;  fix  a  day,  subsequent  to 
the  full  term  of  publication  of  the  assessment  notice,  \jn 
which  the  unpaid  assessments  shall  be  delinquent,  not  less 
than   thirty  nor  more  than  sixty  days  from  the  time  ot  mak- 

133 


§§335.336  CIVIL  code.  [Div.I.Pt.IV. 

ing  the  order  levj-irg  the  assessment;  and  a  day  for  the  saie 
of  delinquent  stock,  not  less  than  fifteen  nor  more  than 
sixty  days  from  the  day  the  stock  is  declared  delinquent. 

History:     Enacted  March  21,  1872. 

§335.  NOTICE  OF  ASSESSMENT.  FORM.  Upon  the 
making  of  ths  order,  the  secretary  shall  cause  to  be  published 
a   notice   thereof,   in   the   following  form: 

(Name  of  corporation  in  full.  Location  of  principal  place 
of  business.)  Notice  is  hereby  given,  that  at  a  meeting  of  the 
directors,  held  on  the  (date),  an  assessment  of  (amount)  per 
share  was  levied  upon  the  capital  stock  of  the  corporation, 
payable  (when,  to  whom,  and  where).  Any  stock  upon  which 
this  assessment  shall  remain  unpaid  on  the  (day  fixed)  will 
be  delinquent  and  advertised  for  sale  at  public  auction,  and, 
unless  payment  Is  made  before,  will  be  sold  on  the  (day  ap- 
pointed), to  pay  the  delinquent  assessment,  together  with 
costs  of  advertising  and  expenses  of  sale. 

(Signature  of  secretary,  with  location  of  office.) 

History:     Enacted  March  21,  1872. 

§336.     PUBLICATION    AND    SERVICE    OF    NOTICE. 

The  notice  must  be  personally  served  upon  each  stockholder, 
or,  in  lieu  of  perspnal  service,  must  be  sent  through  the  mail, 
addressed  to  each  stockholder  at  his  place  of  residence,  if 
known,  and  if  not  known,  at  the  place  where  the  principal 
ofifice  of  the  corporation  is  situated,  and  be  published  once  a 
week,  for  four  successive  weeks,  in  some  newspaper  of  gen- 
eral circulation  and  devoted  to  the  publication  of  general 
news,  published  at  the  place  designated  in  the  articles  of  in- 
corporation as  the  principal  place  of  business,  and  also  in 
some  newspaper  published  in  the  county  in  which  the  works 
of  the  corporation  are  situated,  if  a  paper  be  published  there- 
in. If  the  works  of  the  corporation  are  not  within  a  state 
or  territory   of   the   United   States,   publication   in   a  paper  of 

134 


Tit.I,ch.II,art.ll.]     DELINQUENT    NOTICE.  §§337,338 

the  place  where  they  are  situated  is  not  necessary.  It"  there 
be  no  newspaper  published  at  the  place  designated  as  the 
principal  place  of  business  of  the  corporation,  then  the  publica- 
tion must  be  made  in  some  other  newspaper  of  the  county, 
if.  there  be  one,  and  if  there  be  none,  then  in  a  newspaper 
published  in  an  adjoining  countj\ 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.  1S73-4,  p.  206. 

§337.  DELINQUENT  NOTICE.  FORM.  If  any  por- 
tion of  the  assessment  mentioned  in  the  notice  remains  un- 
paid on  the  day  specified  therem  for  declaring  the  stock  de- 
linquent, the  secretary  must,  unless  otherwise  ordered  by  the 
board  of  directors,  cause  to  be  published  in  the  same  papers 
in  which  the  notice  hereinbefore  provided  for  shall  have 
been  puolisheo,  a  notice  substantially  in  the  following  form: 

(Xame  in  full.  Location  of  the  principal  place  of  business.) 
Notice. — There-  is  delinquent  upon  the  following  described 
stock,  on  account  of  assessment  levied  on  the  (date),  (and 
assessments  levied  previous  thereto,  if  any),  the  several 
amounts  set  opposite  the  names  of  the  respective  sharehold- 
ers, as  follows:  (Names,  number  of  certificate,  number  of 
shares,  amount.)  And  in  accordance  with  law  (and  an 
order  of  the  board  of  directors,  made  on  the  [date],  if  any 
such  order  shall  have  been  made),  so  many  shares  of  each 
parcel  of  such  stock  as  may  be  necessary,  will  be  sold,  at 
the  (particular  place),  on  the  (date),  at  (the  hour)  of  such 
day,  to  pay  delinquent  assessments  thereon,  together  with 
costs  of  advertising  and  expenses  of  the  sale. 

(Name  of  the  secretary,  with  location  of  office.) 

Hi.story:  Enacted  March  21,  1872,  founded  upon  §  2  Act  April 
4,   1864,  Stats.   1863-4,  pp.   492-493. 

§338.  CONTENTS  OF  NOTICE.  The  notice  must 
specify  every  certificate  of  stock,  the  number  of  shares  it 
represents,  and  the  amount  due  thereon,   except  where   cer- 

135 


§§339-341  CIVIL  CODE.  [Div.I.Pt.IV. 

tificates  may  not  have  been  issued  to  parties  entitled  thereto, 
in  which  case  the  number  of  shares  and  amount  due  thereon, 
together  with  the  fact  that  the  certificates  for  such  shares 
have  not  been  issued,  must  be  stated. 

Hi.story:     Enacted  March  21,  1872. 


§339.  HOW  PUBLISHED.  The  notice,  when  published 
in  a  daily  paper,  must  be  published  for  ten  days,  excluding 
Sundays  and  holidays,  previous  to  the   day  of  sale. 

When  published  in  a  weekly  paper,  it  must  be  published  in 
each  issue  for  two  weeks  previous  to  the  day  of  sale.  The 
first  publication  of  all  delinquent  sales  must  be  at  least  fif- 
teen days  prior  to  the  day  of  sale. 

History:     Enacted  March  21,  1S72. 


§340.     JURISDICTION    ACQUIRED,    HOW.       By    the 

publication  of  the  notice,  the  corporation  acquires  jurisdic- 
tion to  sell  and  convey  a  perfect  title  to  all  of  the  stock 
described  in  the  notice  of  sale  upon  which  any  portion  of  the 
assessment  or  costs  of  advertising  remains  unpaid  at  the  hour 
appointed  for  the  sale,  but  must  sell  no  more  of  such  stock 
than  is  necessary  to  paj'  the  assessments  due  and  costs  of 
sale. 

History:     Enacted  March  21,  1872. 


§341.  SALE  TO  BE  BY  PUBLIC  AUCTION.  On  the 
day,  at  the  place,  and  at  the  time  appointed  in  the  notice  of 
sale,  the  secretary  must,  unless  otherwise  ordered  by  the 
directors,  sell  or  cause  to  be  sold  at  public  auction,  to  the 
highest  bidder  for  cash,  so  many  shares  of  each  parcel  of  the 
described  stook  as  may  be  necessary  to  pay  the  assessment 
and  charges  thereon,  according  to  the  terms  of  sale;  if  pay- 

136 


Tit.I.ch.II.art.II.]    SALE  TO"  HIGHEST  BIDDER.  §§342-344 

ment  is  made  before  the  time  fixed  for  sale,  the  partj-  pay- 
ing is  only  required  to  pay  the  actual  cost  of  advertising,  in 
addition  to  the  assessment. 

History:     Eracted  March  21,1S72. 


§342.     HIGHEST  BIDDER  TO  BE  THE  PURCHASER. 

The  person  oTfering  at  such  sale  to  pay  the  assessment  and 
costs  for  the  smallest  number  of  shares  or  fraction  of  a 
share  is  the  highest  bidder,  and  the  stock  purchased  must 
be  transferred  to  him  on  the  stock-books  of  the  corporation, 
on  payment  of  the  assessment  and  costs. 

History:     Enacted  March  21,  1ST2. 

§343.  IN  DEFAULT  OF  BIDDERS,  CORPORATION 
MAY  PURCHASE.  If,  at  the  sale  of  stock,  no  bidder  of- 
fers tlie  amount  of  the  assessments  and  costs  and  charges 
due,  the  same  may  be  bid  in  and  purchased  by  the  corpora- 
tion, through  the  secretarj^,  president,  or  any  director  there- 
of, at  the  amount  of  the  assessments,  costs,  and  charges 
due:  and  the  amount  of  the  assessments,  costs,  and  charges 
must  be  credited  as  paid  in  full  on  the  books  of  the  corpora- 
tion, and  entry  of  the  transfer  of  the  stock  to  the  corporation 
must  be  made  on  the  books  thereof.  While  the  stock  re- 
mains the  property  of  the  corporation  it  is  not  assessable,  nor 
must  any  dividends  be  declared  thereon;  but  all  assessments 
and  dividends  must  be  apportioned  upon  the  stock  held  by 
the    stockholders    of   the    corporation. 

History:     Enacted  March  21.  1S72. 

§344.  DISPOSITION  OF  STOCK  PURCHASED  BY 
CORPORATION.  All  purchases  of  its  own  stock  made  by 
any  corporation  vest  the  legal  title  to  the  same  in  the  cor- 
poration; and  the  stock  so  purchased  is  held  subject  to  the 
control  of  the  stockholders,  who  maj'  make  such  disposition 

137 


§§345.346  CIVIL  CODE.  fDiv.I,Pt.IV. 

of  the  same  as  they  deem  fit,  in  accordance  with  the  by-laws 
of  the  corporation  or  vote  of  a  majority  of  all  the  remain- 
ing shares.  Whenever  any  portion  of  the  capital  stock  of  a 
corporation  is  held  by  the  corporation  by  purchase,  a  major- 
ity of  the  remaining  shares  is  a  majority  of  the  stock  for  all 
purposes  of  election  or  voting  on  3.ny  question  at  a  stock- 
holders' meeting. 

History:     Enacted  March  21,  1872. 


§345.  EXTENSION  OF  TIME  OF  DELINQUENT 
STOCK  SALE.  [NOTICE.]  The  dates  fixed  in  any  notice 
of  assessment  or  notice  of  delinquent  sale,  published  accord- 
ing to  the  provisions  hereof,  ma}-  be  extended  from  time  to 
time  for  not  more  than  thirty  days,  by  order  of  the  directors, 
entered  on  the  records  of  the  corporation,  or  by  the  secre- 
tary, or  assistant  secretary,  of  the  corporation  w^hen  delin- 
quent sale  is  restrained  by  order  of  court,  or  by  judge  there- 
of; but  no  order  extending  the  time  for  the  performance  of 
any  act  specified  in  any  notice  is  effectual  unless  notice  of 
such  extension  or  postponement  is  appended  to  and  published 
with  the  notice  to  which  the  order  relates. 

Historj-:  Enacted  March  12,  1872;  amended  May  20,  1913, 
Stats,  and  Amdts.   1913,  p.   229.     lo  eflEect  August  10,  1913. 


§346.  ASSESSMENTS  SHALL  NOT  BE  INVALID- 
ATED. No  assessment  is  invalidated  b}'  a  failure  to  make 
publication  of  the  notices  hereinbefore  provided  for,  nor  by 
the  non-performance  of  any  act  required  in  order  to  enforce 
the  payment  of  the  same;  but  in  the  case  of  any  substantial 
error  or  omission  in  the  course  of  proceedings  for  collection, 
all  previous  proceedings,  except  the  levying  of  the  assess- 
ment, are  void,  and  publication  must  be  begun  anew. 

History:     Enacted  March  21,  1872. 
138 


Tit.I,ch.II,art.II.]    RECOVERY  OP  STOCK.  §§347,348 

§347.  ACTION  FOR  RECOVERY  OF  STOCK,  AND 
LIMITATION  THEREOF.  No  action  must  be  sustained  to 
recover  stock  sold  for  delinquent  assessments,  upon  the 
ground  of  irregularity  in  the  assessment,  irregularity  or  de- 
fect of  the  notice  of  sale,  or  defect  or  irregularity  in  the  sale, 
unless  the  party  seeking  to  maintain  such  action  first  pays  or 
tenders  to  the  corporation,  or  the  party  holding  the  stock 
sold,  the  sum  for  which  the  same  was  sold,  together  with  all 
subsequent  assessments  which  may  have  been  paid  thereon 
and  interest  on  such  sums  from  the  time  they  were  paid; 
and  no  such  action  must  be  sustained  unless  the  same  is  com- 
menced by  the  filing  of  a  complaint  and  the  issuing  of  a 
summons  thereon  within  six  months  after  such  sale  was 
made. 

History:     Enacted  March  21,  1872. 


§348.     PROOFS  OF  PUBLICATION  AND  SALE.    The 

publication  of  notice  required  by  this  article  may  be  proved  by 
the  affidavit  of  the  printer,  foreman,  or  principal  clerk  of 
the  newspaper  in  which  the  same  was  published;  and  the 
affidavit  of  the  secretary  or  auctioneer  is  prima  facie  evi- 
dence of  the  time  and  place  of  sale,  or  the  quantity  and  par- 
ticular description  of  the  stock  sold,  and  to  whom,  and  for 
what  price,  and  of  the  fact  of  the  purchase  money  being 
paid. 

The  affidavits  must  be  filed  in  the  office  of  the  corporation, 

and  copies  of  the  same,  certified  by  the  secretary  thereof, 
are  prima  facie  evidence  of  the  facts  therein  stated.  Cer- 
tificates, signed  by  the  secretary  and  under  the  seal  of  the 
corporation,  are  prima  facie  evidence  of  the  contents  thereof. 

History:      Enacted    March    21.    1872;    amended   March    30,    1874, 
Code  Amdts.  1873-4,  p.   207. 

139 


§349  CAVii.  CODE.  [Div.I,Pt.IV. 

S349.  WAIVER  OF  SALE.  ACTION  TO  RECOVER 
ASSESSMENT.  On  the  day  specified  for  declaring  the  stock 
delinquent,  or  at  any  time  subsequent  thereto  and  before  the 
sale  of  the  delinquent  stock,  the  board  of  directors  may  elect 
to  waive  further  proceedings  under  this  chapter  for  the  col- 
lection of  delinquent  assessments,  or  any  part  or  portion 
thereof,  and  may  elect  to  proceed  by  action  to  recover  the 
amount  of  thfe  assessment  and  the  costs  and  expenses  al- 
ready incurred,  or  any  part  or  portion  thereof. 

History:     Enacted  March  21,  1872. 


140 


Tit. I, ch. 11 1, art. I.]    POWERS  OF  CORPORATIONS.  §354 


CHAPTER  III. 

CORPORATE   POWERS. 

Article  I.  General  Powers,  §§  354-365. 

II.  Records,  §§377-378. 

III.  Examination  of  Corporations,  §§382-384. 

IV.  Judgment   Against    Corporations,    §§  388-393. 


ARTICLE   I. 

GENERAL  POWERS. 

§  354.     Powers    of    corporations. 

§  355.     Limitation   of  powers. 

§  356.     Banking  expressly  proliibited. 

§  357.     Misnomer    does    not    invalidate    instrument. 

§  358.  Time  in  which  must  be  organized  and  continuance  of 
business. 

§  359.  Increasing  and  diminishing  capital  stock.  [Fictitious 
increase  of  stock  void.]  Bonded  indebtedness,  how 
created  or  increased. 

§  3  60.     Corporations   may   acquire  real  property,   and  how  much. 

§  361.     Changing  number   of  directors   of  corporation. 

§  361a.  Transfer  of  franchise  of  corporation  not  valid  without 
consent  of  the  stockholders. 

§  362.  Amendment  of  articles  or  certificate  of  incorporation. 
Filing,  penalty. 

§  363.  Corporations  to  own  their  own  lots  and  buildings  [re- 
pealed]. 

§  363[a]. Correction  of  erroneous  filing  of  incorporation.  Peti- 
tion,  nature  of.     Action   of  court. 

§  364.     Corporation  may   transfer  foreign   concessions. 

§  365.     Restoration  of  lost  records,  certificates  of  stock,  etc. 

§354.  POWERS  OF  CORPORATIONS.  Every  corpor- 
ation, as  such,  has  povv^er: 

1.  Of  succession,  by  its  corporate  name,  for  the  period 
limited;  and  when  no  period  is   limited,  perpetually; 

141 


§§355,356  CIVIL  CODE.  [Div.I.Pt.IV. 

.2.  To  sue  and  be  sued,  in  any  court; 

3.  To  make  and  use  a  common  seal,  and  alter  the  same  at 
pleasure; 

4.  To  purchase,  hold,  and  convey  such  real  and  personal 
estate  as  the  purposes  of  the  corporation  may  require,  not 
exceeding  the  amount  limited  in  this  part; 

5.  To  appoint  such  subordinate  officers  or  agents  as  the 
business  of  the  corporation  may  require,  and  to  allow  them 
suitable  compensation; 

6.  To  make  by-laws,  not  inconsistent  with  any  existing  law, 
for  the  management  of  its  property,  the  regulation  of  its  af- 
fairs, and  for  the  transfer  of  its  stock; 

7.  To  admit  stockholders  or  members,  and  to  sell  their 
stock  or  shares  for  the  payment  of  assessments  or  instal- 
ments; 

8.  To  enter  into  any  obligations  or  contracts  essential  to 
the  transaction  of  its  ordinary  affairs,  or  for  the  purposes  of 
the  corporation. 

History:     Enacted  March  21,  1872. 


§  355.  LIMITATION  OF  POWERS.  In  addition  to  the 
powers  enumerated  in  the  preceding  section,  and  to  those 
expressly  given  in  that  title  of  this  part  under  which  it  is 
incorporated,  no  corporation  shall  possess  or  exercise  any 
corporate  powers,  except  such  as  are  necessary  to  the  exer- 
cise of  the  powers  so  enumerated  and  given. 

History:     Enacted  March  21,  1872. 


§356.     BANKING      EXPRESSLY      PROHIBITED.      No 

corporation  shall  create  or  issue  bills,  notes,  or  other  evi- 
dences of  debt,  upon  loans  or  otherwise,  for  circulation  as 
money. 

History:     Enacted  March  21,  1872. 

142 


Tit.I,ch.III,art.I.]  TIME  IN  which  to  organize   §§357,358 

§357.  MISNOMER  DOES  NOT  INVALIDATE  IN- 
STRUMENT. The  misn(5mer  of  a  corporation  in  any  writ- 
ten instrument  does  not  invalidate  the  instrument,  if  it  can 
be  reasonably  ascertained  from  it  what  corporation  is  in- 
tended. 

History:     Enacted  March  21,  1872. 


§358.  TIME  IN  WHICH  MUST  BE  ORGANIZED, 
AND  CONTINUANCE  OF  BUSINESS.  If  a  corporation 
does  not  organize  and  commence  tiie  transaction  of  its  busi- 
ness, or  the  construction  of  its  works  within  one  year  from 
the  date  of  its  incorporation,  or  if,  after  its  organization  and 
commencement  of  its  business,  it  shall  lose  or  dispose  of  all 
its  property,  and  shall  fail  for  a  period  of  two  years  to  elect 
officers  and  transact,  in  regular  order,  the  business  of  said 
corporation,  its  corporate  powers  shall  cease,  and  the  said 
corporation  may  be  dissolved  at  the  instance  of  any  creditor 
of  the  said  corporation,  at  the  suit  of  the  state,  on  the  in- 
formation of  the  attorney-general,  but  the  resumption  of  its 
business  in  good  faith  by  such  corporation  prior  to  the  com- 
mencement thereof  shall  be  a  bar  to  such  suit. 

[Collateral  attack  not  allowed.]  The  due  incorporation  of 
any  company  claiming  in  good  faith  to  be, a  corporation  un- 
der this  part,  and  doing  business  as  such,  or  its  right  to  ex- 
ercise corporate  powers,  shall  not  be  inquired  into  collater- 
ally in  any  private  suit  to  which  such  de  facto  corporation 
may  be  a  party;  but  such  inquiry  may  be  had  at  the  suit 
of  the  state  on  information  of  the  attorney-general;  provided, 
however,  as  to  any  company  claiming  in  good  faith  to  be,  and 
which  has  been  doing  business  for  ten  consecutive  years  as 
a  corporation,  no  such  inquiry  shall  be  made  either  by  the 
state   or  by  any  person  whatsoever. 

History:  Enacted  March  21,  1872;  amended  March  23,  1901, 
Stats,  and  Amdts.   1900-1,  p.   632. 

143 


§359  CIVIL   CODE.  [Div.I.Pt.IV. 

§359.  INCREASING  AND  DIMINISHING  CAPITAL 
STOCK.  [FICTITIOUS  INCREASE  OF  STOCK  VOID.] 
BONDED  INDEBTEDNESS,  HOW  CREATED  OR  IN- 
CREASED. No  corporation  shall  issue  stocks  or  bonds  ex- 
cept for  money  paid,  labor  done  or  property  actually  re- 
ceived, and  all  fictitious  increase  of  stock  or  indebtedness  is 
void.  Every  corporation  may  increase  or  diminish  its  capital 
stock,  and  every  corporation,  or  two  or  more  corporations, 
may  create  or  increase  its  or  their  bonded  indebtedness,  sub- 
ject to  the  following  provisions: 

1.  [How   capital   stock   may   be   increased   or   diminished.] 

The  capital  stock  of  a  corporation  may  be  increased  or  dim- 
inished at  a  meeting  of  the  stockholders  by  a  vote  represent- 
ing at  least  two-thirds  of  the  subscribed  or  issued  capital 
stock,  or  in  the  manner  otherwise  in  this  section  provided; 
when  by  meeting  as  aforesaid,  then  such  meeting  must  be 
called  by  the  board  of  directors  or  trustees,  and  notice  must 
be  given  by  publication  in  a  newspaper  published  in  the 
county  or  city  and  county  where  the  principal  place  of  busi- 
ness of  the  corporation  is  located,  or  if  thert  be  none  pub- 
lished in  said  county  or  city  and  county,  then  in  a  newspaper 
published  in  an  adjoining  county,  or  city  and  county,  such 
paper  to  be  designated  by  the  board  of  directors  or  trustees 
in  the  order  calling  for  the  meeting;  proviaed,  however,  that 
where  the  articles  of  incorporation  provide  for  two  or  more 
kinds  of  capital  stock,  no  increase  or  reduction  of  capital 
stock  shall  be  made  v/ithout  the  assent  of  two-thirds  of  all 
the  subscribed  stock,  and  in  making  such  increase  or  reduc- 
tion, tlie  assent  shall  identify  the  particular  class  or  classes 
of  stock  to  be  increased  or  reduced,  and  the  amounts  appor- 
tioned to  eacn. 

2.  [What  notice  must  specify.]  The  notice  must  specify 
the  object  of  '■he  meeting  and  the  amount  to  which  it  is  pro- 
posed to  mcrease  or  diminish  the  capital  stock,  the  time 
and  place  of  Iiolding  the  meeting,  which  latter  must  be  at 
the  principal  place  of  business  of  the  corporation  and  at  the 

144 


Tit. I, ch.IJI, art. I.]  CREATING   BONDED    INDEBTEDNESS.  §  359 

building  where  the  buard  of  directors  or  trustees  usually 
meet.  The  notice  herein  provided  must  be  published  once 
a  week  lor  at  least  sixty  days.  The  capital  stock  cannot  be 
diminished  to  an  amount  less  than  the  indebtedness  of  the 
corporation. 

o.  [How  bonded  indebtedness  may  be  created  or  increased.] 
The  bonded  mdebtedness  of  a  corporation  may  be  created 
or  increased  by  a  vote  of  the  stockholders  representing:  at 
least  two-thirds  of  the  subscribed  or  issued  capital  stock  at 
a  meeting  called  by  the  board  of  directors  of  trustees,  and 
after  notice  of  the  time  and  place  of  the  meeting  published  in 
the  same  manner  and  for  the  time  prescribed,  which  notice 
shall  state  the  amount  of  the  bonded  indebtedness  which  it 
is  proposed  tc  create,  or  the  amount  to  which  it  is  proposed 
to  increase  such  indebtedness,  and  shall  in  all  other  respects 
contain  the  same  matters  as  are  above  provided  and  set  forth 
in  the  notice  of  meeting  to  increase  or  diminish  the  capital 
stock;  or  such  original  creation  of  bonded  indebtedness  may 
be  made  as  otherwise  in  this  section  provided. 

4.  [Notification  to  stockholders.]  In  addition  to  the  notice 
by  publication,  when  proceedings  are  to  be  had  hereunder 
at  a  meeting  of  stockholders,  the  secretary  of  the  corporation 
shall  also  address  a  notice  to  each  of  the  stockholders  whose 
names  appear  on  the  company's  books  as  sufficiently  ad- 
dressed or  identified,  at  his  place  01  residence,  if  known,  and 
if  not  known,  then  at  the  place  in  which  the  principal  place 
of  business  of  the  corporation  is  situate,  which  notice  shall 
be  so  mailed  to  such  stockholders  at  least  thirty  days  before 
the  day  appointed  for  such   meeting. 

5.  [Directors  may  diminish  stock  and  create  indebted- 
ness.] In  lieu  of  such  call  for  meeting  of  stockholders  and 
of  such  notice  and  publication  of  the  same  and  of  a  stock- 
holders' meeting  held  in  pursuance  thereof  and  of  said  vote 
thereat  representing  at  least  two-thirds  of  the  subscribed  cap- 
ital stock,  any  corporation  may  diminish  its  capital  stock 
and  also  originally  create  its  bonded  indebtedness  by  a  reso- 

145 


§359  CIVIL   CODE.  [Div.I.Pt.IV. 

lution  adopted  by  the  unanimous  vote  of  its  board  of  direc- 
tors or  trustees  at  a  regular  meeting  or  at  a  special  meeting 
called  for  that  purpose  and  approved  by  the  written  assent 
or  assents  of  the  stockholders,  holding  two-thirds  of  the  sub- 
scribed or  issued  capital  stock,  which  assent  or  assents  must 
be  filed  with  the  secretary  of  the  corporation;  but  the  secre- 
tary of  the  corporation  must  address  by  mail,  postage  fully 
prepaid,  a  copy  of  such  resolution  to  each  of  the  stockholders 
whose  names  appear  upon  the  company's  books  as  sufficiently 
addressed  or  identified,  at  his  place  of  residence,  if  known, 
and  if  not  known,  then  at  the  place  in  which  the  principal 
place  of  business  of  the  corporation  is  situate,  which  notice 
shall  be  so  mailed  to  such  stockholders  at  least  thirty  days 
before  the  certificate  hereinafter  provided  is  made  and  signed 
or  filed,  as  hereinafter  provided,  and  within  that  time  any 
stockholder  may  file  with  such  secretary  his  dissent  in  writ- 
ing; but  it  is  further  provided,  that  if  at  any  time  within  said 
thirty  days  such  written  assent  or  assents  of  the  stockhold- 
ers holding  all  of  the  subscribed  or  issued  capital  stock  be 
so  filed  with  said  secretary,  then  and  at  once  and  without 
further  delay  the  certificate  hereinafter  provided  for  may 
be  so  made,  signed  and  filed  as  hereinafter  provided  and  with 
the   same   efTect. 

[Limit  of  diminution.]  But  such  capital  stock  cannot  be 
diminished  to  an  amount  less  than  the  indebtedness  of  the 
corporation,  and  no  increase  of  capital  stock  or  bonded  in- 
debtedness can  be  made,  except  at  a  meeting  of  stockholders 
as   in   this   section   provided. 

6.  [Consolidated  indebtedness.]  Any  two  or  more  cor- 
porations may  by  a  separate  compliance  by  each  corporation 
with  the  provisions  of  this  section  applicable  in  the  prem- 
ises in  respect  to  creating  or  increasing  bonded  indebted- 
ness, create  or  increase  a  consolidated  bonded  indebtedness 
of  such  corporations,  to  be  binding  jointly  and  severally  on 
such  corporations,  and  which  may  be  secured  by  a  consoli- 
dated mortgage  or  deed  of  trust  executed  by  all  such  cor- 

146 


Tit.I,ch.III,art.I.]  CERTIFICATE  OF  INCREASE,  ETC.         §359 

porations,  mortgaging  or  conveying  in  trust  all  or  any  of  the 
properties  of  all  such  corporations,  acquired  or  to  be  ac- 
quired. 

7.  [Certificate  of  increase  or  diminution.]  Upon  such  in- 
crease or  diminution  of  the  capital  stock  or  creation  or  in- 
crease of  the  bonded  indebtedness  being  made  in  accordance 
with  the  provisions  of  this  section  there  shall  be  made,  if 
proceedings  are  had  under  subdivisions  first,  second,  third 
and  fourth  above,  a  certificate  under  the  corporate  seal  and 
signed  by  the  president  and  secretary  of  the  corporation  or 
of  each  corporation  acting  in  the  premises  and  a  majority 
of  the  directors  or  trustees  of  such  corporation,  or  each  cor- 
poration so  acting,  showing  a  compliance  by  such  corporation, 
or  each  corporation  so  acting,  with  the  requirements  of  said 
last-named  subdivisions  and  the  amount  to  which  the  capital 
stock  has  been  increased  or  diminished  or  the  amount  of  the 
bonded  indebtedness  created,  or  to  which  the  bonded  indebted- 
ness may  have  been  increased,  and  the  amount  of  stock  repre- 
sented at  the  meeting  and  the  total  vote  in  the  affirmative  by 
which  the  same  was  accomplished  and  the  total  vote  in  the 
negative;  or  if  such  proceedings  be  had  and  taken  under  sub- 
division fifth  of  this  section  as  to  diminution  of  capital  stock 
or  original  creation  of  bonded  indebtedness  a  like  certificate 
shall  be  made  and  sealed  and  signed,  as  aforesaid,  showing 
a  compliance  by  such  corporation,  and  by  each  corporation 
acting  in  the  premises,  with  the  requirements  of  said  sub- 
division fifth,  and  the  amount  to  which  the  capital  stock  has 
been  diminished  or  the  amount  of  bonded  indebtedness  so 
originally  created,  and  the  total  amount  of  the  stock  repre- 
sented by  the  said  written  assent  or  assents  so  filed  with  the 
secretary  and  the  total  amount  of  stock  represented  by  the 
said  written  dissent  or  dissents  so  filed.  In  case  of  a  con- 
solidated bond  of  indebtedness  each  corporation  which  is  a 
party  thereto  shall  cause  to  be  made  and  signed  and  sealed 
and  verified  and  filed,  as  in  this  section  provided,  a  separate 
certificate. 

147 


§359  CIVIL  CODE.  [Div.I,Pt.IV. 

8.  [What  certificate  shall  state.]  In  all  cases  the  certifi- 
cates shall  state  the  total  number  of  subscribed  or  issued 
shares  of  the  capital  stock  of  the  corporation,  or  of  each 
corporation  respectively  acting  in  the  premises,  and  shall  be 
verified  by  the  oath  of  the  said  president  and  secretary,  or 
of  the  said  respective  presidents  and  secretaries.  Such  con- 
solidated bonded  indebtedness  may  be  created  or  increased 
to  an  amount  equal  to  the  par  or  face  value  of  the  aggregate 
amount  of  the  subscribed  or  issued  capital  stock  of  said  two 
or  more  corporations,  but  shall  not  exceed  such  aggregate 
amount. 

[Where  filed.]  In  each  and  every  case  the  certificate  must 
be  filed  in  the  ofhce  of  the  clerk  in  the  county  or  city  and 
county  where  the  original  articles  of  incorporation  of  the 
corporation  or  corporations  acting  hereunder  afe  filed  and 
a  certified  copy  thereof,  certified  by  such  clerk,  shall  be  filed 
in  the  office  of  the  secretary  of  state;  and  thereupon  the 
capital  stock  shall  be  so  increased  or  diminished,  or  the 
bonded  indebtedness  or  consolidated  bonded  indebtedness 
shall  be  created  or  increased  accordingly,  and  such  certificate 
or  certificates  so  filed  shall  be,  when  said  certified  copy  or 
copies  are  so  filed,  conclusive  proof  of  such  increase  or  di- 
minution of  capital  stock  or  such  creation  or  increase  of 
bonded  or  consolidated  bonded  indebtedness  and  the  validity 
of  each  thereof. 

[Publication  of  notices.]  When  the  by-laws  of  a  corpora- 
tion prescribe  the  paper  in  which  notices  of  meetings  of 
directors  or  trustees  or  stockholders  are  to  be  published  the 
notices  of  publication  herein  provided  for  shall  be  published 
in  such  paper,  unless  publication  thereof  shall  have  ceased. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1S73-4,  p.  207;  March  3,  1883,  Stats,  and  Amdts. 
1883,  p.  31;  March  18,  1885,  Stats,  and  Amdts.  1885,  p.  141;  March 
19,  1889,  Stats,  and  Amdts.  1889,  p.  364;  March  23,  1893,  Stats, 
and  Amdts.  1893,  p.  191;  March  21,  1903,  Stats,  and  Amdts.  1903, 
p.  347;  amended  March  18,  1907,  Stats,  and  Amdts.  1907,  pp.  439- 
452,   Kerr's   Stats,    and   Amdts.    1906-7,   pp.    405-408. 

148 


Tit.I.ch.III.art.I.]  ACQUIRING  REAL  PROPERTY.       §§  360,  361 

§360.  CORPORATIONS  MAY  ACQUIRE  REAL 
PROPERTY,  AND  HOW  MUCH.  No  corporation  shall 
acquire  or  hold  any  more  real  property  than  may  be  rea- 
sonably necessary  for  the  transaction  of  its  business,  or  the 
construction  of  its  works,  except  as  otherwise  specially  pro- 
vided. A  corporation  may  acquire  real  property,  as  pro- 
vided in  title  seven,  part  three,  of  the  Code  of  Civil  Pro- 
cedure, when  needed  for  any  of  the  uses  and  purposes  men- 
tioned  in   said   title. 

By  a  unanimous  vote  of  all  the  directors  at  any  regular 
meeting,  any  corporation  existing,  or  hereafter  to  be  formed 
under  the  laws  of  this  state,  may  acquire  and  hold  the  land 
and  building  on  and  in  which  its  business  is  carried  on,  and 
may  improve  the  same  to  any  extent  required  for  the  con- 
venient transaction  of  its  business. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  208;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  351,  held  unconsti- 
tutional, see  history,  §4  ante;  amendment  re-enacted  March 
22,   1905,   Stats,   and  Amdts.   1905,  p.   774. 


§361.  CHANGING  NUMBER  OF  DIRECTORS  OF 
CORPORATION.  Any  corporation  or  association  may  in- 
crease or  diminish  the  number  of  its  directors  or  trustees 
by  the  vote  or  written  assent  of  stockholders  representing 
a  majority  of  its  subscribed  capital  stock,  or,  if  it  has  no 
capital  stock,  by  the  vote  or  written  assent  of  a  majority  of 
the  members.  A  certificate  over  the  corporate  seal,  setting 
forth  the  action  taken  by  the  stockholders,  or  members,  and 
stating  the  new  number  of  directors,  shall  be  signed  by  the 
president  and  secretary  of  such  corporation  or  association, 
and  filed  in  the  office  of  the  county  clerk  of  the  county  where 
its  original  articles  of  incorporation  were  filed,  and  a  copy  of 
said  certificate,  certified  by  such  county  clerk,  shall  be  filed 
in  the  office  of  tlie  secretary  of  state,  whereupon  the  number 

149 


§§  361a,  362  civil  code.  [Div.I.Pt.IV. 

of   directors   or   trustees   shall   be   changed   as   stated    in    said 
certificate. 

History:  Original  section,  relating  to  consolidation  of  Min- 
ing Companies  on  joining  claims,  enacted  March  21,  1872, 
amended  March  20,  1876,  Code  Amdts.  1875-6,  p.  75,  repealed  by 
Code  Commission,  Act  March  18,  1901,  Stats,  and  Amdts.  1900-1, 
p.  351,  Act  held  unconstitutional,  see  History,  §  4  C.  C;  re- 
repealed  March  22,  1905,  Stats,  and  Amdts.  1905,  p.  775,  present 
section  enacted  as  a  new  section  and  given  the  same  number 
June  11,  1915,  Stats,  and  Amdts.  1915,  p.  1456.  In  effect  August 
10,  1915. 


§361a.  TRANSFER  OF  FRANCHISE  OF  CORPORA- 
TION NOT  VALID  WITHOUT  CONSENT  OF  STOCK- 
HOLDERS. No  sale,  lease,  assignment,  transfer  or  con- 
veyance of  the  business,  franchise  and  property,  as  a  whole, 
of  any  corporation  now  existing,  or  hereafter  to  be  formed 
in  this  state,  shall  be  valid  without  the  consent  of  stock- 
holders thereof,  holding  of  record  at  least  two-thirds  of  the 
issued  capital  stock  of  such  corporation;  such  consent  to  be 
either  expressed  in  writing,  executed  and  acknowledged  by 
such  stockholders,  and  attached  to  such  sale,  lease,  assign- 
ment, transfer  or  convej^ance,  or  by  a  vote  at  a  stockholders' 
meeting  of  such  corporation  called  for  that  purpose;  but 
with  such  assent,  so  expressed,  such  sale,  lease,  assignment, 
transfer  or  conveyance  shall  be  valid;  provided,  however, 
that  nothing  herein  contained  shall  be  construed  to  limit  the 
power  of  the  directors  of  such  corporati&n  to  make  sales, 
leases,  assignments,  transfers  or  conveyances  of  corporate 
property  other  than  those  hereinabove  set  forth. 

History:  Enacted  March  24,  1903,  Stats,  and  Amdts.  1903,  p. 
396. 

§362.  AMENDMENT  OF  ARTICLES  OR  CERTIFI- 
CATE    OF     INCORPORATION.     FILING,     PENALTY. 

Any  corporation  organized  under  the  laws  of  this  state  may 

150 


Tit.I,ch.III,art.I.]     AMENDING  ARTICLES.  §362 

amend  its  articles  of  incorporation  for  any  or  all  of  the  fol- 
lowing purposes: 

1.  To  set  forth  a  new  name. 

2.  To  alter  or  repeal  any  provision  appearing  in  its  orig- 
inal or  amended  articles  of  incorporation  relative  to  the  pur- 
poses for  which  the  corporation  is  formed,  or  to  set  forth, 
additional  powers  or  purposes. 

3.  To  designate  a  principal  place  of  business  other  than 
the  place  designated  in  its  original  or  amended  articles  of 
incorporation. 

4.  To  state  the  date  to  which  its  existence  has  been  ex- 
tended. 

5.  To  state  the  number  of  its  directors,  as  increased  or  di- 
minished. 

6.  To  state  the  amount  of  its  capital  stock  as  increased  or 
diminished  and  the  number  of  shares  and  the  par  value 
thereof,  or  to  change  the  num.ber  of  shares  and  their  par 
value  or  to  provide  for  the  classification  of  its  capital  stock 
into  preferred  and  common  shares,  in  which  event  there  must 
be  set  forth  a  statement  of  the  number  of  shares  of  stock  to 
which  preference  is  granted  and  the  number  of  shares  of 
stock  to  which  no  preference  is  granted,  also  a  clear  and  suc- 
cinct statement  of  the  nature  and  extent  of  the  preference 
granted,  and  except  as  to  the  matters  and  things  so  stated, 
no  distinction  shall  exist  between  said  classes  of  stock  or  the 
owners  thereof;  provided,  however,  that  no  preference  shall 
be  granted  nor  shall  any  distinction  be  made  between  the 
classes  of  stock  either  as  to  voting  power  or  as  to  the  stat- 
utory or  constitutional  liability  of  the  holders  thereof  to 
the  creditors  of  the  corporation;  and  provided,  further,  that 
both  the  preferred  and  common  shares  shall  be  of  the  same 
par  value. 

7.  To  change  the  statement  appearing  in  its  original  or 
amended  articles  of  incorporation  of  the  nature  and  extent 
of  such  preference,  subject  to  the  above  limitations. 

151 


§362  CIVIL   CODE.  [Div.T,Pt.IV. 

8.  [Majority  vote  of  directors.]  And  generally  to  provide 
for  any  other  amendment  not  contrary  to  law.  The  articles 
of  incorporation  may  be  amended  as  aforesaid  by  a  majority 
vote  of  the  board  of  directors  of  the  corporation  and  by  the 
vote  or  written  assent  of  the  holders  of  at  least  two-thirds 
of  the  subscribed  capital  stock  of  such  corporation,  or  if  the 
corporation  has  no  capital  stock  then  by  a  majority  vote  of 
its  board  of  directors  and  by  the  vote  or  M^ritten  assent  of 
a  majority  of  the  members.  Upon  the  adoption  of  amended 
articles  of  incorporation,  a  copy  of  the  articles  as  thus 
amended  shall  be  certified  to  as  correct  by  the  president  and 
secretary  and  a  majority  of  the  directors  of  the  corporation 
and  the  corporate  seal  of  such  corporation  shall  be  affixed 
to  the  certificate.  Such  certificate  shall  also  set  forth  the  pro- 
ceedings by  virtue  of  which  the  amended  articles  were  adopt- 
ed, which  proceedings  must  be  in  accordance  with  the  pro- 
visions of  this  section  above   set  forth. 

[Amended  articles  filed.]  The  copy  of  amended  articles 
of  incorporation,  thus  certified,  shall  be  filed  in  the  office 
of  the  county  clerk  of  the  county  in  which  the  original 
articles  of  incorporation  of  such  corporation  were  filed, 
and  a  copy  thereof,  certified  by  such  county  clerk,  shall  be 
filed  in  the  office  of  the  secretary  of  state,  whereupon  such 
corporation  shall  have  the  same  powers,  and  the  stockhold- 
ers thereof  shall  thereafter  be  subject  to  the  same  liabilities, 
as  if  such  amendment  had  been  embraced  in  the  original 
articles  of  incorporation.  A  copy  of  such  copy,  certified  by 
the  secretary  of  state,  shall  be  filed  in  the  ofifice  of  the  county 
clerk  of  every  county  in  which  such  corporation  has  or  holds 
real  property,  except  only  the  county  in  which  the  original 
articles  of  incorporation  were  filed.  Any  corporation  which 
shall  amend  its  articles  of  incorporation  and  shall  fail  to  file 
copies  of  its  amended  articles,  as  required  by  the  preceding 
sentence,  shall  be  subject  to  the  penalties  and  liabilities  pro- 
vided in  section  two  hundred  and  ninety-nine  for  a  failure  of 
corporations  to  file  copies  of  their  articles  of  incorporation 

152 


Tit.I.ch.II  I, art. I.]  AMENDMENT— CHANGES.  §§363,  363[a] 

in   the   office   of   the   county   clerks   of   the   counties   in   which 
they  shall  purchase,  hold,  or  locate  property. 

[Changes  not  permitted.]  Nothing  contained  in  this  sec- 
tion must  be  construed  to  cure  or  amend  any  defect  existing 
in  the  original  articles  of  incorporation,  where  such  defect 
is  of  such  character  as  to  render  such  original  articles  in- 
valid. And  it  is  hereby  expressly  provided  that  no  corpora- 
tion shall  amend  its  articles  of  incorporation  to  alter  the 
statements  which  appear  in  the  original  articles,  of  the  names 
and  residences  of  the  first  directors  or  the  statements  which 
appear  in  such  originals,  of  the  amount  of  capital  stock  sub- 
scribed and  by  whom.  Nothing  appearing  herein  shall  be 
construed  as  permitting  a  corporation  to  change  its  name  or 
its  principal  place  of  business,  extend  or  reduce  its  term  of 
existence,  or  increase  or  diminish  its  number  of  directors  or 
its  capital  stock,  by  amending  its  articles  of  incorporation. 

History:  Enacted  March  21,  1872;  amended  March  12,  1885, 
Stats,  and  Amdt.s.  1885,  p.  91;  March  11,  1893,  Stats,  and  Amdts. 
1893,  p.  131;  amended  by  Code  Commission  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  351,  Act  held  unconstitutional,  see 
History,  §4  C.  C;  amended  March  25,  1903,  Stats,  and  Amdts. 
1903,  p.  411;  March  22,  1905,  Stats,  and  Amdts.  1905,  p.  775;  June 
11,  1915,  Stats,  and  Amdts.  1915,  p.  1457.  In  eflfeot  August  10, 
1915. 

§363.  CORPORATIONS  TO  OWN  THEIR  OWN 
LOTS  AND  BUILDINGS   [repealed]. 

History;  Enacted  March  5,  1889,  Stats,  and  Amdts.  1889,  p. 
67.  At  the  same  session  another  section  numbered  §  363  was 
enacted  by  the  same  legislature  on  March  19  (Stats,  and  Amdts. 
1889,  p.  332).  The  Act  of  March  5  was  repealed  by  Code  Com- 
mission, Act  of  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352, 
held  unconstitutional,  see  history,  §  4  ante,  and  the  act  was 
re-repealed  March  22,  1905,  Stats,  and  Amdts.  1905,  p.   776. 

§363  [a].  CORRECTION  OF  ERRONEOUS  FILING 
OF  INCORPORATION.  PETITION,  NATURE  OF. 
ACTION  OF  COURT.     When  articles  of  incorporation  have 

153 


§363[a]  CIVIL  CODE.  [Div.I,Pt.IV. 

been  prepared,  subscribed,  and  executed  in  accordance  with 
the  provisions  of  sections  two  hundred  and  ninety  and  two 
hundred  and  ninety-two  of  the  civil  code,  and  such  original 
articles  filed  by  error  or  inadvertence  with  the  clerk  of  a 
county  other  than  that  named  in  the  articles  of  incorporation 
as  the  county  in  which  the  principal  place  of  business  is 
to  be  transacted,  and  the  secretary  of  state  shall  have  issued 
a  certificate  of  incorporation  based  on  a  certified  copy  of 
such  original  articles  of  incorporation,  any  stockholder  or 
director  of  such  corporation  may  petition  the  superior  court 
of  the  county  in  which  said  original  articles  of  incorporation 
were  filed  for  an  order  to  withdraw  such  original  articles 
of  incorporation,  and  file  in  place  thereof  a  certified  copy  of 
the  copy  thereof  on  file  in  the  office  of  the  secretary  of 
state.  Such  petition  must  be  verified,  and  must  state  clearly 
the  facts,  showing  that  such  articles  of  incorporation  were 
filed  by  inadvertence  and  mistake;  and  notice  of  the  hearing 
of  said  petition  must  be  given  for  at  least  ten  days  before 
the  day  of  hearing,  by  publication  in  a  newspaper  published 
in  the  countj^  where  such  petition  is  filed. 

[Hearing  and  proceedings  on  order.]  Upon  the  day  set 
for  hearing  the  petition  the  superior  court  may  grant  an 
order  allowing  such  original  articles  of  incorporation  to  be 
withdrawn,  and  a  certified  cop}-  of  the  copy  in  the  office  of 
the  secretary  of  state  in  the  place  thereof  filed;  and  the  or- 
iginal articles  of  incorporation  must  be  filed  within  ten  days 
thereafter  in  the  county  in  which  the  principal  place  of 
[where]  business  is  to  be  transacted,  as  stated  in  such  articles 
of  incorporation,  and  a  certified  copy  of  the  order  allowing 
such  action  must  be  filed  with  the  certified  copy  in  the  office 
of  the  secretary  of  state,  after  which  said  corporation  shall 
be  entitled  to  all  rights  and  privileges  of  a  private  corpora- 
tion, and  the  title  to  any  property  it  may  have  previously 
acquired  shall  not  be  afifected  by  reason  of  the  failure  to  file 
the  original  articles  of  incorporation  in  the  first  instance. 

History:  Enacted  March  19,  1SS9,  Stats,  and  Amdts.  18S9,  p. 
332.     In  force  March  19,   18S9. 

154 


Tit.I,ch.III.art.I.]  CONCESSIONS— LOST  RECORDS.   §§364,365 

§  364.  CORPORATIONS  MAY  TRANSFER  FOREIGN 
CONCESSIONS.  Any  corporation  of  this  state  owning 
grants,  concessions,  franchises,  and  properties,  or  any  there- 
of, in  any  foreign  country,  may  sell  and  convey  the  same  co 
the  government  of  such  foreign  country,  or  to  any  person 
or  persons,  or  any  corporation  or  corporations,  or  associa- 
tion or  associations,  created  by  or  existing  under  the  laws 
of  this  or  any  other  state  or  the  United  States,  or  any  for- 
eign government;  provided,  however,  that  the  powers  hereby 
granted  shall  only  be  exercised  by  a  majorit}^  of  the  entire 
board  of  directors  of  such  corporation  of  this  state,  with  the 
concurrence  in  writing  of  the  holders  of  two-thirds  in  amount 
of  the   capital  stock  thereof. 

History:  Became  law,  under  unconstitutional  provision,  with- 
out governor's  approval,  March  13,  1899. 


§365.  RESTORATION  OF  LOST  RECORDS,  CER- 
TIFICATES OF  STOCK,  ETC.  Whenever  it  shall  appear 
that  the  minutes,  records,  seal,  assessment  book,  stock  jour- 
nal, stock  ledger,  certificate  book,  certificate  of  stock  or 
bonds  or  other  papers  or  records  of  any  corporation,  mu- 
nicipal, quasi  or  otherwise,  in  this  state,  shall  have  been  or 
shall  hereafter  be  lost  or  destroyed  by  conflagration  or  other 
public  calamity,  such  corporation,  by  a  vote  of  its  board  of 
directors,  or  any  stockholder  or  bondholder  of  such  cor- 
poration, may  petition  the  superior  court  of  the  county,  or 
city  and  county,  in  which  the  principal  place  of  business  of 
such  corporation  is  located,  to  restore  such  lost,  destroyed, 
or  injured  minutes,  records,  seal,  assessment  book,  stock 
journal,  stock  ledger,  certificate  book,  certificate  of  stock  or 
bonds  or  other  papers  or  records.  Such  petition  shall  state 
the  loss,  destruction  or  injury  to  any  such  records  or  docu- 
ments or  certificates  of  stock  or  bonds,  or  other  papers  or 
records,  or  any  part  or  portion  thereof,  giving  the  cause  of 
such   loss,  injury  or  destruction. 

155 


§365  CIVIL   CODE.  [Div.I,Pt.IV. 

[Petition  filed  with  court.]  On  the  fihng  of  such  petition, 
duly  verified,  said  superior  court  shall  make  an  order,  fixing 
a  time  and  place  for  the  hearing  of  the  same,  and  directing 
the  clerk  of  the  court  to  give  notice  of  such  a  hearing  by 
publication  of  a  notice  stating  the  time  and  place  of  the 
hearing  of  said  petition  and  the  purpose  thereof,  v^'hich  time 
shall  not  be  less  than  twenty-five  nor  more  than  thirty  days 
from  the  completion  of  such  publication. 

[Publication  of  notice  of  hearing.]  Notice  of  such  hearing 
shall  be  given  by  publication  in  some  newspaper  of  general 
circulation,  printed  and  published  in  such  county,  or  city 
and  county,  where  the  principal  place  of  business  of  said 
corporation  is  located,  and  if  there  be  no  such  newspaper 
published  in  said  county,  or  city  and  county,  then  in  some 
adjoining  county,  to  be  designated  by  the  court  or  judge 
thereof,  which  publication  shall  be  daily  (except  Sundays) 
for  a  period  of  at  least  three  successive  weeks.  In  case  there  is 
no  daily  newspaper  published  in  either  of  said  counties  then 
such  notice  shall  be  published  once  a  week  for  three  suc- 
cessive weeks  in  a  weekly  newspaper  published  in  such 
county. 

[Service  of  notice.]  A  copy  of  said  notice  shall  also  be 
personally  served  upon  all  persons  affected  thereby  residing 
in  the  state  of  California,  whose  place  of  residence  or  place 
of  business  is  known  to  the  corporation  or  any  of  its  officers, 
if  such  person  can  be  found  within  the  state,  which  service 
may  be  made  at  any  time  during  said  period  of  publication. 
If  the  place  of  business  or  place  of  residence  of  any  persons 
affected  by  said  petition  or  proceeding  is  unknown  to  the 
corporation  or  any  of  its  officers,  within  forty-eight  hours 
after  the  filing  of  said  petition,  a  copy  of  said  notice  shall  be 
mailed  to  each  of  the  persons  affected  by  said  petition  or 
proceeding  whose  place  of  residence  or  place  of  business  is 
unknown  to  said  corporation  or  any  of  its  officers,  addressed 
to  them,  postage  prepaid,  at  the  county  seat  of  the  county', 
or  county  and  city,  where  the  place  of  business  of  said  cor- 

156 


Tit. I, ch. Ill, art. I.]   PROOF  OF  SERVICE  OF  NOTICE.  §355 

poration  is  located.  In  addition  to  the  notice  by  publication, 
the  petitioner  shall  address  a  copy  of  said  notice  to  each  of 
the  stockholders  of  said  corporation,  and  also  to  each  of  the 
persons  affected  by  said  petition,  whose  names  and  places 
of  residence  or  business  are  known  to  the  corporation  or  any 
of  its  officers,  at  his  place  of  business  or  residence,  postage 
prepaid,  which  notice  shall  be  mailed  to  such  stockholders 
or  persons  within  forty-eight  hours  after  the  filing  of  said 
petition. 

[Proof  required  of  publication  and  service  of  notice.]     The 

court  before  proceeding  to  hear  the  case,  shall  require  proof 
to  be  made  that  notice  has  been  published  and  given  as  here- 
inbefore required  and  service  of  such  notice  personally  if  the 
same  has  been  so  served  and  if  the  same  has  not  been  so 
served,  an  affidavit  of  the  petitioner  stating  the  reasons  why 
such  personal  service  has  not  been  made,  shall  also  be  then 
filed. 

[Jurisdiction  of  court — Judgment  and  decree.]  Upon  the 
completion  of  said  publication,  said  court  shall  have  jurisdic- 
tion to  inquire  into  and  determine  the  loss,  injury  or  destruc- 
tion of  such  minutes,  records,  seal,  assessment  book,  stock 
journal,  stock  ledger,  certificate  book,  certificates  of  stock  or 
bonds,  or  other  papers  and  documents,  and  to  fix  and  deter- 
mine by  its  judgment  or  decree,  the  ownership  of  said  cer- 
tificates of  stock  or  bonds  and  the  persons  entitled  thereto, 
and  to  direct  such  corporation  to  restore  its  records,  seal, 
assessment  book,  stock  journal,  stock  ledger,  certificate  book, 
certificates  of  stock  or  bonds  or  any  other  paper  or  record  so 
lost,  injured  or  destroyed,  and  to  issue  new  bonds  or  cer- 
tificates of  stock  or  other  paper  or  document  to  any  person 
or  persons  to  whom  the  same  may  belong  or  who  may  be  en- 
titled thereto,  as  determined  bj'  the  judgment  of  the  court. 

[Unknown  owners — Sale  of  stock  for  delinquent  assess- 
ments.] Any  stock,  bond  or  other  paper,  the  owner.'^hip  of 
which  cannot  be  determined,  shall  be  found  by  the  court, 
by   its  judgment,   to   belong   to   unknown   owners,  and    in   all 

157 


§365  CIVIL   CODE.  [Div.I,Pt.IV. 

proceedings  of  such  corporation,  including  proceedings  for 
assessment  of  stock,  and  the  collection  of  such  assessment, 
and  the  payment  of  dividends,  and  notice  of  sale  and  sale 
for  delinquent  assessments,  said  stock  or  dividends  shall  be 
so  designated  as  belonging  to  unknown  ov^^ners,  without  giv- 
ing the  name  of  the  owner  thereof  or  the  number  of  the 
certificate   or   series  or  issue. 

Historj-:  Enacted  June  18,  1906,'  Stats,  and  Amdts.  1906,  pp. 
S4-S6. Kerr's  Stats,  and  Amdts.  1906-7,  pp.  408,  409.  In  effect 
immediately. 


158 


Tit.I,ch.III,art.II.]    RECORDS— HOW  KEPT.  §§377,378 


ARTICLE  II. 

RECORDS. 

§  377.  Records — Of  what,  and  hov/  kept.  [Record  must  em- 
brace what.] 

§  378.  Other  records  t®  be  kept  by  corporations  for  profit,  and 
others. 

§  377.     RECORDS— OF  WHAT,  AND  HOW  KEPT.     All 

corporations  for  profit  are  required  to  keep  a  record  of  all 
their  business  transactions;  a  journal  of  all  meetings  of  their 
directors,  members,  or  stockholders,  with  the  time  and  place 
of  holding  the  same,  whether  regular  or  special,  and  if  spe- 
cial, its  object,  how  authorized,  and  the  notice  thereof  given. 
The  record  must  embrace  every  act  done  or  ordered  to  bt 
done;  who  were  present,  and  who  absent;  and,  if  requested 
by  any  director,  member,  or  stockholder,  the  time  shall  be 
noted  when  he  entered  the  meeting  or  obtained  leave  of  ab- 
sence therefrom.  On  a  similar  request  the  ayes  and  noes 
must  be  taken  on  any  proposition,  and  a  record  there- 
of made.  On  similar  request,  the  protest  of  any  director, 
member,  or  stockholder,  to  any  action  or  proposed  action, 
must  be  entered  in  full — all  such  records  to  be  open  to  the 
inspection  of  any  director,  member,  stockholder,  or  cred- 
itor of  the   corporation. 

History:     Enacted  March  21,  1872. 

§378.  OTHER  RECORDS  TO  BE  KEPT  BY  COR- 
PORATIONS FOR  PROFIT,  AND  OTHERS.  In  addition 
to  the  records  required  to  be  kept  by  the  preceding  section, 
corporations  for  profit  must  keep  a  book,  to  be  known  as 
the  "Stock  and  Transfer  Book,"  in  which  must  be  kept  a 
record  of  all  stock;  the  names  of  the  stockholders  or  mem- 
bers, alphabetically  arranged;    installments    paid    or    unpaid; 

159 


§378  CIVIL    CODE.  [Div.l.Pt.lV. 

assessments  levied  and  paid  or  unpaid;  a  statement  of  every 
alienation,  sale,  or  transfer  of  stock  made,  the  date  thereof, 
and  by  and  to  whom;  and  all  such  other  records  as  the  by- 
laws  prescribe. 

Corporations  for  religious  and  benevolent  purposes  must 
provide  in  their  by-laws  for  such  records  to  be  kept  as  may 
be  necessary.  Such  stock  and  transfer  book  must  be  kept 
open  to  the  inspection  of  any  stockholder,  member,  or  cred- 
itor. 

History:     Enacted  March  21,  1872. 


160 


Tit.I,ch.III,art.III.]    examination  OF  affairs.    §§382,383 


ARTICLE  III. 

EXAMINATION  OF  CORPORATIONS,   ETC. 

[This  article  was  taken  from  the  Statutes  of  1850,  §§  29,  30,  p. 
350.] 
§  382.     Examination    into    affairs    of    corporation,    liow    made    by 

officers  of  state. 
§  383.      Examination   made   by   legislature. 
§  384.     Chapter   and  article   may   be   repealed. 

§  382.     EXAMINATION  INTO  AFFAIRS  OF  CORPOR- 
ATION, HOW  MADE  BY  OFFICERS  OF  STATE.     The 

attorney-general  or  district  attorney,  whenever  and  as  often 
as  required  by  the  governor,  must  examine  into  the  affairs 
and  condition  of  any  corporation  in  this  state,  and  report 
such  examination,  in  writing,  together  with  a  detailed  state- 
ment of  facts,  to  the  governor,  who  must  lay  the  same  be- 
fore the  legislature;  and  for  that  purpose  the  attorney-gen- 
eral or  district  attorney  may  administer  all  necessary  oaths 
to  the  directors  and  officers  of  any  corporation,  and  may 
examine  them  on  oath  in  relation  to  the  afifairs  and  condition 
thereof,  and  may  examine  the  books,  papers,  and  documents 
belonging  to  such  corporation,  or  appertaining  to  its  affairs 
and  condition. 

History:     Enacted  March  21,  1872. 


§383.  EXAMINATION  MADE  BY  THE  LEGISLA- 
TURE. The  legislature,  or  either  branch  thereof,  may  ex- 
amine into  the  affairs  and  condition  of  any  corporation  in 
this  state  at  all  times;  and,  for  that  purpose,  any  committee 
appointed  by  the  legislature,  or  either  branch  thereof,  may 
administer  all  necessary  oaths  to  the  directors,  officers,  and 
stockholders  of  such  corporation,  and  may  examine  them  on 
oath   in    relation    to   the   affairs    and   condition   thereof;    and 

R  161 


§384  CIVIL  CODE.  [Div.I.Pt.IV. 

may  examine  the  safes,  books,  papers,  and  documents  be- 
longing to  such  corporation,  or  pertaining  to  its  affairs  and 
condition,  and  compel  the  production  of  all  keys,  books, 
papers,  and  documents  by  summary  process,  to  be  issued  on 
application  to  any  court  of  record  or  any  judge  thereof,  under 
such  rules  and  regulations  as  the  court  may  prescribe. 

HLstory:     Enacted  March  21,  1S72. 

§384.  CHAPTER  AND  ARTICLE  MAY  BE  RE- 
PEALED (repealed).  Section  three  hundred  and  eighty-four 
of  the  Civil  Code  is  hereby  repealed;  provided,  however, 
that  this  shall  not  be  deemed  to  repeal  or  otherwise  affect 
section  four  hundred  and  four  of  said  code;  and  provided 
further  that  no  rights  acquired  under  the  provisions  of  said 
section  three  hundred  and  eighty-four  shall  be  affected  here- 
by, but  the  same  shall  be  continued  in  force  under  the  pro- 
visions of  said  sectiop  four  hundred  and  four. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held 
unconstitutional;  see  liistory,  §  69  ante;  repealed  March  IS,  1907, 
Stats,  and  Amdts.  1907,  p.  578,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  410. 


162 


Tit.I,ch.III,art.lV.]    JUDGMENT— EXECUTION.  §§388-390 


ARTICLE  IV. 

JUDGMENT  AGAINST  AND  SALE  OF  CORPORATE  PROPERTY 

§  3S8.  Franchise   sold   under   execution. 

§  3S9.  Purchaser    to    transact   business    of    corporation. 

§  390.  Purchaser   may   recover  penalties,   etc. 

§  391.  Liabilities   same   as   before   sale. 

§  392.  Redemption. 

§  393.  Sale,   when    made. 

§388.     FRANCHISE      SOLD      UNDER     EXECUTION. 

For  the  satisfaction  of  any  judgment  against  any  person, 
company,  or  corporation  having  any  franchise  other  than 
the  franchise  of  being  a  corporation,  such  franchise,  and  all 
the  rights  and  privileges  thereof,  may  be  levied  upon  and 
sold  under  execution,  in  the  same  manner,  and  with  the  same 
effect,  as  any  other  property. 

Historj-t  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  208;  Feb.  23,  1897,  Stats,  and  Amdts. 
1897,  p.  16;  amended  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  352,  held  unconstitutional,  see  his- 
tory, §  4  ante;  amendment  re-enacted  March  20,  1905,  Stats, 
and  Amdts.  1905,  p.  409. 

§389.  PURCHASER  TO  TRANSACT  BUSINESS  OF 
CORPORATION.  The  purchaser  at  the  sale  must  receive 
a  certificate  of  purchase  of  the  franchise,  and  be  immediately 
let  into  the  possession  of  all  property  necessary  for  the  ex- 
ercise of  the  powers  and  the  receipt  of  the  proceeds  thereof, 
and  must  thereafter  conduct  the  business  of  such  corpora- 
tion, with  all  its  powers  and  privileges,  and  subject  to  all  its 
liabilities,  until  the  redemption  of  the  same,  as  hereinafter 
provided. 

History:     Enacted  March  21,  1872. 

§390.  PURCHASER  MAY  RECOVER  PENALTIES, 
ETC.     The  purchaser  or  his  assignee  is  entitled  to  recover  any 

163 


§§391-393  crviL  code.  [Div.I.Pt.lV. 

penalties  imposed  by  law  and  recoverable  by  the  corpora- 
tion for  an  injury  to  the  franchise  or  property  thereof,  or 
for  any  damages  or  other  cause,  occurring  during  the  time 
he  holds  the  same,  and  may  use  the  name  of  the  corpora- 
tion for  the  purpose  of  any  action  necessary  to  recover  the 
same.  A  recovery  for  damages  or  any  penalties  thus  had 
is  a  bar  to  any  subsequent  action  by  or  on  behalf  of  the  cor- 
poration for  the  same. 

History:     Enacted  March  21,  1872. 

§  391.     LIABILITIES  SAME  AS  BEFORE  SALE.     The 

person,  company,  or  corporation  whose  franchise  is  sold, 
as  in  this  article  provided,  in  all  other  respects  retains  the 
same  powers,  is  bound  to  the  discharge  of  the  same  duties, 
and  is  liable  to  the  same  penalties  and  forfeitures,  as  before 
such  sale. 

Hi.stor.v:  Enacted  March  21.  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  20,  1905,  Stats,  and  Amdts.   1905,  p.  409. 

§392.  REDEMPTION.  Redemption  from  any  such  sale 
may  be  had  as  provided  in  the  Code  of  Civil  Procedure  in 
the  case  of  redemptions  from  sales  of  real  estate  on  execu- 
tion. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held 
unconstitutioal,  see  history,  §  4  ante;  amendment  re-enacted 
March  20,  1905,  Stats,  and  Amdts.   1905,  p.   409. 

§393.  SALE,  WHERE  MADE.  The  sale  of  any  fran- 
chise under  execution  must  be  made  in  the  county  in  which 
the  corporation  has  its  principal  place  of  business,  or  in 
which  the  property,  or  some  portion  thereof,  is  situated. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  209;  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held  unconstitutional,  see 
history,  §  4  ante;  amendment  re-enacted  March  20,  1905,  Stats, 
and  Amdts.   1905,  p.   409. 

164 


Tit.I,ch.IV.]       EXTENSION  AND  DISSOLUTION.  §§  399-401 


CHAPTER    IV. 

EXTENSION  AND   DISSOLUTION   OF   CORPORATIONS. 

§  399.     Proceedings    on    disincorporation    [repealed]. 

§  400.  Corporations,  directors  trustees  of  creditors^  wlien  dis- 
solved,   except. 

§  401.  Extension  of  corporate  existence,  how  made.  Certifi- 
cate and  certified  copy,  filing  of. 

§  402.  How  corporations  may  continue  their  existence  [re- 
pealed]. 

§  403.  Title  I  to  apply  to  all  corporations,  with  certain  excep- 
tions  [repealed]. 

§399.     PROCEEDINGS     ON       DISINCORPORATION 

[repealed]. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held 
unconstitutional,  see  history,  §  4  ante;  repeal  re-enacted  March 
21,  1905,  Stats,  and  Amdts.  1905,  p.  563. 

§400.  CORPORATIONS,  DIRECTORS  TRUSTEES 
OF  CREDITORS,  WHEN  DISSOLVED,  EXCEPT.  Un- 
less other  persons  are  appointed  by  the  court,  the  directors 
or  managers  of  the  affairs  of  a  corporation  at  the  time  of 
its  dissolution  are  trustees  of  the  creditors  and  stockholders 
or  members  of  the  corporation  dissolved,  and  have  full 
power  to  settle  the  affairs  of  the  corporation. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.   1905,  p.   563. 

§401.  EXTENSION  OF  CORPORATE  EXISTENCE, 
HOW  MADE.  [CERTIFICATE  AND  CERTIFIED 
COPY,  FILING  OF.]  Every  corporation  heretofore  or  here- 
after formed,  and  existing  under  the  laws  of  this  state,  may, 

165 


§401  CIVIL   CODE.  [Div.I.Pt.IV. 

at  any  time  prior  to  the  expiration  of  the  term  of  its  corpor- 
ate existence  extend  such  terms  to  a  period  not  exceeding 
fifty  years  from  the  date  of  such  extension.  Such  extension 
may  be  made  at  any  meeting  of  the  stockholders,  or  mem- 
bers, called  by  the  directors  especially  for  considering  the 
subject,  if  voted  for  by  stockholders  representing  two-thirds 
of  the  capital  stock;  or  by  two-thirds  of  the  members  where 
there  is  no  capital  stock;  or  may  be  made  upon  the  written 
assent  of  two-thirds  of  the  members  or  of  stockholders  rep- 
resenting two-thirds  of  the  capital  stock. 

[Certificate  filed  with  county  clerk  and  secretary  of  state.] 
A  certificate  of  such  vote  or  assent  shall  be  signed  and 
sworn  to  by  the  president  and  secretary  and  by  a  majority 
of  the  directors  of  the  corporation,  and  filed  in  the  office  of 
the  county  clerk  where  the  original  articles  of  incorporation 
were  filed,  and  a  copy  certified  by  such  clerk,  shall  be  filed 
in  the  oliice  of  the  secretary  of  state,  and  thereupon  the  term 
of  existence  of  the  corporation  shall  be  extended  for  the  pe- 
riod specified  in  such  certificate.  The  fees  for  certifying 
such  certificate  and  filing  the  same  and  the  certified  copy 
thereof,  shall  be  the  same  as  those  prescribed  by  law  for 
certifying  and   filing  articles   of  incorporation  in  such  cases. 

[Franchises.]  In  no  event  shall  such  extension  be  con- 
strued to  prolong  or  extend  the  duration  of  any  franchise  or 
privilege  heretofore  granted  to  any  corporation  or  joint  stock 
company  by  special  legislative  act,  or  by  the  mimicipal  au- 
thorities of  any  county,  city,  city  and  county,  town,  or  other 
political  subdivision  of  this  state,  beyond  the  term  fixed  by 
the  provisions  of  the  act,  ordinance  or  resolution  conferring 
such  privilege  or  franchise,  or  beyond  the  term  fixed  for  the 
maximum  period  of  existence  of  such  corporation  or  joint 
stock  company  by  laws  in  force  and  governing  the  formation 
and  organization  thereof  at  the  time  such  corporation  or  joint 
stock  company  was  formed  or  organized. 

History-:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  209;  by  Code  Commission.  Act  March  16, 
1901,   Stats,  and  Amdts.   1900-1,  p.   353,  held  unconstitutional,  see 

166 


Tit.I.ch.IV.]      EXTENSION  AND  DISSOLUTION.  §§402,403 

history,  §  69  ante;  amendments  re-enacted  March  21,  1905,  Stats, 
and  Amdts.  1905,  p.  564;  amended  March  18,  1907,  Stats,  and 
Amdts.  1907,  p.  344,  Kerr's  Stats,  and  Amdts.  1906-7.  p.  410. 
In   elTect    immediately. 

§402.     HOW       CORPORATIONS     MAY     CONTINUE 
THEIR  EXISTENCE  [repealed]. 

History:    .Enacted    March    21,    1872;    repealed    March    30,    1874, 
Code  Amdts.   1873-4,  p.   209. 

§403.     TITLE     I     TO     APPLY     TO  ALL  CORPORA- 
TIONS,  WITH    CERTAIN    EXCEPTIONS    [repealed]. 

History:      Enacted    March    21,    1872;    repealed    March    20,    1905, 
Stats,   and  Amdts.    1905,   p.    410. 


167 


§§403[a],404  civil  code.  [Div.I,Pt.IV. 


CHAPTER  V. 

GENERAL  PROVISIONS  AFFECTING  CORPORATIONS. 

§  403[a]. Title  one  to  apply  to  all  corporations,  with  certain  ex- 
ceptions. 

§  404.  Legislature  may  amend,  etc.,  corporation  laws  and  dis- 
solve  corporations. 

§403[a].  GENERAL  PROVISIONS  APPLY,  WHEN- 
SPECIAL  PROVISIONS  APPLY,  WHEN.  The  provi- 
sions of  this  title  are  applicable  to  every  corporation,  unless 
such  corporation  is  excepted  from  its  operation,  or  unless 
a  special  provision  is  made  in  relation  thereto  inconsistent 
with  some  provision  in  this  title,  in  which  case  the  special 
provison    prevails. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
410. 

§404.  LEGISLATURE  MAY  AMEND,  ETC.,  CORPOR- 
ATION     LAWS     AND      DISSOLVE    CORPORATIONS. 

The  legislature  may  at  any  time  amend  or  repeal  this  part, 
or  any  title,  chapter,  article,  or  section  thereof,  and  dissolve 
all  corporations  created  thereunder;  but  such  amendment 
or  repeal  does  not,  nor  does  the  dissolution  of  any  such  cor- 
poration, take  away  or  impair  any  remedy  given  against  any 
such  corporation,  its  stockholders  or  officers,  for  any  liabil- 
ity which  has  been  previously  incurred. 

History:  Enacted  by  Code  Commission,  Act  March  IG,  1901, 
Stats,  and  Amdts.  1900-1,  p.  353,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21^  1905,  Stats,  and  Amdts. 
1905,  p.   410 


168 


Tit.I,ch.VI.]  FOREIGN  CORPORATIONS.  .  §405 


CHAPTER  VI. 

FOREIGN  CORPORATIONS. 

[This  chapter  is  a  codification,  Act  Api'il  3,  1S80  (Stats.  1880, 
p.  21),  and  Act  March  17,  1899  (Stats,  and  Amdts.  1899,  p.  Ill), 
amending-  Act  April  1,  1872,  Stats.  1871-2,  p.  826.  See  Pierce  vs. 
Southern  Pac.  Co.,  120  Cal.  156,  47  Pac.  Rep.  874,  52  Id.  302,  40  L. 
R.  A.  350.] 

§  405.  Designation  of  person  on  whom  process  may  be  served. 
Service  on  the  secretary  of  state,  valid,   when. 

§  406.  Foreign  corporations,  statute  of  limitations  in  favor  of. 
Proof  of  corporate  existence.     Change  of  designation. 

§  407.     Foreign  railway  corporations,   rights  of  in  this  state. 

§  408.  Foreign  corporations  to  iile  certified  copies  of  articles  of 
incorporation    [in   office   of   Secretary   of   State]. 

§  409.  Foreign  corporations,  fees  to  be  paid  by,  on  filing  certi- 
fied  copies   of   articles    of   incorporation. 

§  410.  Foreign  corporation,  penalty  for  failure  to  file  certified 
copies   of  articles   of   incorporation. 

§405.  DESIGNATION  OF  PERSON  ON  WHOM 
PROCESS  IVIAY  BE  SERVED.  SERVICE  ON  SECRE- 
TARY OF  STATE  VALID,  WHEN.  Every  corporation 
other  than  those  created  by  or  under  the  laws  of  this  state 
must,  at  the  time  of  filing  the  certified  copy  of  its  articles 
of  incorporation,  file  in  the  office  of  the  secretary  of  state  a 
designation  of  some  person  residing  within  the  state  upon 
whom  process  issued  by  authority  of  or  under  any  law  of 
this  state  may  be  served.  A  copy  of  such  designation,  duly 
certified  by  the  secretary  of  state,  is  sufficient  evidence  of 
such  appointment.  Such  process  may  be  served  on  the 
person  so  designated,  or,  in  the  event  that  no  such  person 
is  designated,  then  on  the  secretary  of  state,  and  the  service 
is   a  valiJ  service  on   such   corporation. 

History:  Added  by  Code  Commission,  Act  Marcli  21,  1901, 
Stats,  and  Amdts.  1900-1,  p.  353,  held  unconstitutional;  see  his- 
tory,   §  69    ante;    re-enacted    March    21,    1905,    Stats,    and    Amdts. 

169 


§406  GIVIL   CODE.  [Div.I.Pt.IV. 

1905,  p.  630.  A  codification  of  §  1  Act  Marcli  17,  1899;  see  intro- 
ductory note  to  this  cliapter;  amended  March  18,  1907.  Stats, 
and  Amdts.   1907,  p.   558,  Kerr's  Stats,   and  Amdts.   1906-7,  p.   410. 


§406.  FOREIGN  CORPORATION,  STATUTE  OF 
LIMITATIONS  IN  FAVOR  OF.  PROOF  OF  CORPOR- 
ATE    EXISTENCE.     CHANGE     OF       DESIGNATION. 

Every  corporation  which  complies  with  the  provisions  of 
this  chapter  is  thereafter  entitled  to  the  benefit  of  the  laws 
of  this  state  limiting  the  time  for  the  commencement  of  civil 
actions,  but  no  corporation  not  created  by  or  under  the  laws 
of  this  state  is  entitled  to  the  benefit  thereof,  nor  can  any 
such  corporation  maintain  or  defend  any  action  or  proceed- 
ing in  any  court  of  this  state  until  the  corporation  has  com- 
plied with  the  provisions  of  the  preceding  section. 

[Proof  of  foreign  corporation.]  In  any  action  or  proceed- 
ing instituted  against  any  body  styled  as  a  corporation,  but 
not  created  by  nor  under  the  laws  of  this  state,  evidence  that 
such  body  has  acted  as  a  corporation,  or  employed  methods 
usually  employed  by  corporations,  must  be  received  by  the 
court  for  the  purpose  of  proving  the  existence  of  such  cor- 
poration, the  sufficiency  of  such  evidence  to  be  determined 
by  the  court  with  like  effect  as  in  other  cases. 

[Designation  for  service — Revocation,  etc. — New  designa- 
tion.] Every  corporation  which  has  complied  with  the  laws 
then  in  force,  requiring  it  to  make  and  file  a  designation  of 
the  person  upon  whom  process  against  it  may  be  served, 
need  not  make  or  file  any  further  designation.  Any  desig- 
nation heretofore  or  hereafter  made  may  be  revoked  by  the 
filing  by  the  corporation  with  the  secretary  of  state  of  a  writ- 
ing stating  such  revocation.  Within  forty  days  after  the 
death  or  removal  from  the  state  of  any  person  designated  by 
the  corporation,  or  after  the  revocation  of  the  designation, 
the  corporation  must  make  a  new  designation,  or  be  sub- 
ject to  the  provisions  and  penalties  of  this  chapter. 

170 


Tit.I.ch.VI.]  FOREIGN  RAILROADS.  §§407,408 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  353,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    630;   see   introductory  note  to   this  cliapter. 

§407.  FOREIGN  RAILROADS,  RIGHTS  IN  THIS 
STATE.  Every  railway  or  other  corporation  organized  for 
the  purpose  of  carrying  freight  or  passengers  under  or  by 
virtue  of  the  laws  of  the  United  States,  or  of  any  state  or 
territory  thereof,  may  build  railroads,  exercise  the  right  of 
eminent  domain,  and  transact  any  other  business  which  it 
might  do  if  it  were  created  and  organized  under  or  by  vir- 
tue of  the  laws  of  this  state,  and  has  the  same  rights,  privi- 
leges, and  immunities,  and  is  subject  to  the  same  laws,  pen- 
alties, obligations,  and  burdens  as  if  created  or  organized 
under  and  by  virtue  of  the  laws  of  this  state.  Nothing  con- 
tained in  this  section  shall  be  construed  to  exempt  any  cor- 
poration from  any  duty  or  liability  imposed  upon  it  by  any 
of  the  provisions  of  this  chapter. 

HLstory:  Enacted  by  Code  Commission,  Act  Marcli  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  354,  lield  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   631;  see  the  introductory  note  to  this  chapter. 


§408.  FOREIGN  CORPORATION  MUST  FILE  CER- 
TIFIED COPY  OF  ARTICLES  OF  INCORPORATION 
[IN  OFFICE  OF  SECRETARY  OF  STATE].  Every  cor- 
poration organized  under  the  laws  of  another  state,  terri- 
tory, or  of  a  foreign  country,  which  is  now  doing  business 
in  this  state,  or  is  maintaining  an  office  herein,  or  which  shall 
hereafter  do  business  in  this  state,  or  maintain  an  office 
herein,  or  which  shall  enter  this  state  for  the  purpose  of  do- 
ing business  herein,  must  file  in  the  office  of  the  secretary 
of  state  of  the  state  of  California  a  certified  copy  of  its  ar- 
ticles of  incoiporation,  or  of  its  charter,  or  of  the  statute 
or  statutes,  or  legislative,  or  executive,  or  governmental  act 
or   acts   creating   it,   in   cases   where   it  has'  been   created   by 

171 


§§409,410  CIVIL   CODE.  [Div.I/Pt.IV. 

charter,  or  statute,  or  legislative,  or  executive,  or  govern- 
mental act,  duly  certified  by  the  secretary  of  state,  or  other 
officer  authorized  by  the  law  of  the  jurisdiction  under  which 
such  corporation  is  formed  to  certify  such  copy,  and  a  certi- 
fied copy  thereof,  duly  certified  by  the  secretary'  of  state  of 
this  state,  in  the  office  of  the  county. clerk  of  the  county 
where  its  principal  place  of  business  is  located,  and  also 
where   such   corporation  owns  property. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
631;  amended  March  IS,  1907,  Stats,  and  Amdts.  1907,  p.  559, 
Kerr's   Stats,   and  Amdts.    1906-7,  p.   411. 

§409.  FOREIGN  CORPORATIONS,  FEES  TO  BE 
PAID  BY,  ON  FILING  CERTIFIED  COPIES  OF  ARTI- 
CLES OF  INCORPORATION.  For  filing  and  issuing  a 
certified  copy  as  required  in  section  four  hundred  and  eight 
of  this  code,  corporations  formed  under  the  laws  of  another 
state,  or  of  a  territory,  or  of  a  foreign  country,  must  pay 
the  same  fees  as  are  paid  by  corporations  formed  under  the 
laws  of  this  state. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
631;   see  introductory  note  to   this  chapter. 

§410.  FOREIGN  CORPORATION.  PENALTY  FOR 
FAILURE  TO  FILE  COPIES  OF  ARTICLES  OF  INCOR- 
PORATION. Every  corporation  organized  under  the  laws 
of  another  state,  or  territory,  or  of  a  foreign  country,  which 
shall  neglect  or  fail,  within  ninety  days  from  the  taking  ef- 
fect of  this  section,  to  comply  with  the  conditions  of  sections 
four  hundred  and  eight  and  four  hundred  and  nine  of  this 
code,  shall  be  subject  to  a  fine  of  not  less  than  five  hundred 
dollars,  to  be  recovered  in  anj^  court  of  competent  jurisdic- 
tion; 

[Proceedings  to  recover  fine.]  And  it  is  hereby  made  the 
duty  of  the  secretary  of  state,  as  he  may  be  advised  that 
corporations  are  doing  business  in  contravention   of  sections 

172 


Tit.I, ch. VI. 1  FAILURE   TO   FILE   COPIES— PENALTY.  §410 

four  hundred  and  eight  and  four  hundred  and  nine  of  this 
code,  to  report  the  fact  to  the  governor,  who  shall  instruct 
(1)  the  district  attorney  of  the  county  wherein  such  corpor- 
ation has  its  principal  place  of  business,  or  (2)  the  attorney 
general  of  the  state,  or  both,  as  soon  as  practicable,  to  in- 
stitute proceedings  to  recover  the  fine  provided  for  in  this 
section,  and  the  amount  so  recovered  must  be  paid  into  the 
state  treasury  to  the  credit  of  the  general  fund  of  the  state; 

[Corporations  failing  to  comply  may  not  maintain  suits.] 

In  addition  to  which  penalty,  no  foreign  corporation  which 
shall  fail  to  comply  with  sections  four  hundred  and  eight  and 
four  hundred  and  nine  of  this  code  can  maintain  any  suit  or 
action  in  any  of  the  courts  of  this  state,  or  acquire  or  convey 
any  legal  title  to  any  real  property  within  this  state,  until  it 
has  complied  with  said  sections; 

[Corporations  exempted.]  Provided,  that  any  such  cor- 
poration which,  prior  to  the  eighth  day  of  March,  nineteen 
hundred  and  one,  shall  have  complied  with  the  provisions  of 
the  act  entitled  ''An  act  to  amend  'An  act  in  relation  to  for- 
eign corporations,'  approved  April  first,  eighteen  hundred 
and  seventy-two,"  approved  March  seventeenth,  eighteen 
hundred  and  ninety-nine,  is  exempted  from  the  provisions  of 
this  section  and  the  two   sections  next  preceding. 

History:  Enagted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
631;  amended  April  26,  1911,  Stats,  and  Amdts.  1911,  p.   1113. 


173 


§414  CIVIL   CODE.  [Div.I.Pt.IV. 


TITLE  II. 
INSURANCE  CORPORATIONS 

Chapter   I.     General   Provisions,   §§  414-422. 

II.     Fire      and       Marine       Insurance       Corporations, 
§§  424-432. 

III.  Mutual    Life,    Health,     and     Accident     Insurance 

Corporations,   §§  437-452. 

IV.  Mutual    Benefit    and    Life    Associations,    §§  452a- 

453. 
V.     Corporations  to   Discover  Fire  and   Save   Prop- 
erty and  Human  Life  from  Destruction  There- 
by,  §§453a-453c. 
VI.     Life,   Health,  Accident,  and  Annuity  or  Endow- 
ment   Insurance      on      the      Assessment    Plan, 
§§  453d-453p. 
VII.     Title  Insurance  Corporations,  §§  453s-453z. 
VIII.     Mortgage   Insurance,    §§453a-453hh. 


CHAPTER   I. 
GENERAL.  PROVISIONS. 

414.  Subscription   to   capital  stock  opened,  and   how  collected. 

415.  Purchase    and    conveyance    of    real    estate.      [What    prop- 

erty   may    be    held;    what    must    be    sold    within    five 
years.] 

416.  Policies,   how   issued  and  by  whom   signed. 

417.  Dividends,    of    what   and    when    declared. 

418.  Directors  liable  for  loss  on  insoirance  in  certain  cases. 

419.  Certain  companies  to  have  capital  stock  of  two  hundred 

thousand  dollars   [repealed]. 

420.  Certain  companies  to  have  capital   stock  of  one   hundred 

thousand  dollars    [repealed]. 

421.  Investment    of    capital    and    accumulations.      Reports    to 

officers. 

422.  Report    on    stocks    and    bonds    held    by    insurance    com- 

panies. 

174 


Tit. II, ch. I.]  SUBSCRIPTION  TO  STOCK.  §§414^415 

§414.  SUBSCRIPTIONS  TO  CAPITAL  STOCK 
OPENED,  AND  HOW  COLLECTED.  After  the  secretary 
of  state  issues  the  certificate  of  incorporation,  as  provided 
in  article  one,  chapter  one,  title  one,  of  this  part,  the  di- 
rectors named  in  the  articles  of  incorporation  must  proceed 
in  the  manner  specified,  or  in  their  by-laws,  or  if  none,  then 
in  such  manner  as  they  may  by  order  adopt,  to  open  books 
of  subscription  to  the  capital  stock  then  unsubscribed,  and 
to  secure  subscriptions  to  the  full  amount  of  the  fixed  capital; 
to  levy  assessments  and  instalments  thereon,  and  to  collect 
the  same,  as  in  chapter  two  of  title  one  provided. 

HLstory:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  354,  held 
unconstitutional,  see   liistory,    §  4   ante. 


§415.  PURCHASE  AND  CONVEYANCE  OF  REAL 
ESTATE.  [WHAT  PROPERTY  MAY  BE  HELD; 
WHAT  MUST  BE  SOLD  WITHIN  FIVE  YEARS.]     No 

insurance    corporation    may    purchase,    hold    or    convey    real 
estate,  except  as  hereinafter  set  forth,  to  wit: 

1.  The  building  in  which  it  has  its  principal  office  and  the 
land   upon   which    it   stands. 

2.  Also,  such  as  may  be  requisite  for  its  accommodation 
in  the  convenient  transaction  of  its  business. 

3.  Also,  such  as  may  be  conveyed  to  it,  or  to  any  person 
for  it,  by  way  of  mortgage,  or  in  trust  or  otherwise,  to  se- 
cure or  provide  for  the  payment  of  loans  previously  con- 
tracted  or   for   moneys   due. 

4.  Also  such  as  may  be  purchased  at  sales  upon  deeds  of 
trust,  or  judgments  obtained  or  made  for  such  loans  or  debts. 

5.  Also  sucli  as  may  be  conveyed  to  it  in  satisfaction  of 
debts  previously  contracted  in  the  course  of  its  dealings. 

All  such  real  estate,  mentioned  in  subdivisions  three,  four 
and  five,  so  acquired,  which  is  not  requisite  for  the  accomo- 

175 


§§416-418  CIVIL  CODE.  [Div.I,Pt.IV. 

dation  of  such  corporation  in  the  transaction  of  its  busi- 
ness, must  be  sold  and  disposed  of  within  five  years  after 
such  corporation  acquired  title   to  the  same. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16.  1901,  Stats,  and  Amdts.  1900-1,  p.  354,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
Feb.   24,   1905,   Stats,  and  Amdts.   1905,  p.   21. 

§416.  POLICIES,  HOW  ISSUED  AND  BY  WHOM 
SIGNED.  All  policies  made  by  insurance  corporations  must 
be  subscribed  by  the  president  or  vice  president,  or  in  case 
of  the  death,  absence,  or  disability  of  those  officers,  by  any 
two  of  the  directors,  and  countersigned  by  the  secretary  oi 
the  corporation.  All  such  policies  are  as  binding  and  ob- 
ligatory upon  the  corporation  as  if  executed  over  the  cor- 
porate seal. 

HLstory:     Enacted  Marcli  21,  1872. 

§417.  DIVIDENDS,  OF  WHAT  AND  WHEN  DE- 
CLARED. The  directors  of  every  insurahce  corporation, 
at  such  times  as  their  by-laws  provide,  must  make,  declare, 
and  pay  to  the  stockholders  dividends  of  so  much  of  the 
net  profits  of  the  corporate  business  and  interest  on  capital 
invested  as  to  them  appears  advisable;  but  the  moneys  re- 
ceived and  notes  taken  for  premium  on  risks  which  are  un- 
determined and  outstanding  at  the  time  of  making  the  divi- 
dend must  not  be  treated  as  profits,  nor  divided,  except  as 
provided  in  chapter  two  of  this  title. 

History:  Enacted  March  21,  1872,  founded  upon  §  21  Act 
April  2,  1866,  Stats.  1865-6,  p.  748;  amended  by  Code  Commis- 
sion, Act  March   16,   1901,   Stats,   and  Amdts.   1900-1,  p.    355,   held 

unconstitutional,  see  history,   §  4  ante. 

§418.  DIRECTORS  LIABLE  FOR  LOSS  ON  INSUR- 
ANCE IN  CERTAIN  CASES.  If  any  insurance  corpora- 
tion is  under  liabilities  for  losses  to  an  amount  equal  to  its 

176 


Tit. II, ch. I.]      INVESTMENTS,   ACCUMULATIONS.  §§419-421 

capital  stock,  and  the  president  or  directors,  after  knowing 
the  same,  make  any  new  or  further  insurance,  the  estates 
of  all  who  make  such  insurance,  or  assent  thereto,  are  sev- 
erally and  jointly  liable  for  the  amount  of  any  loss  which 
takes   place   under   such    insurance. 

History:  Enacted  March  21.  1S72,  founded  upon  Act  April  2, 
1866,  Stats.  1865-6,  p.  747;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  355,  held  unconsti- 
tutional, see  history,   §  4  ante. 

§419.  CERTAIN  INSURANCE  COMPANIES  TO 
HAVE  A  CAPITAL  STOCK  OF  TWO  HUNDRED 
THOUSAND    DOLLARS     [repealed]. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  269;  April  1,  1878,  Code  Amdts.  1877-8,  p. 
80;  amended  by  Code  Commission,  Act  March  16,  1901.  Stats, 
and  Amdts.  1900-1,  p.  355,  held  unconstitutional,  see  history,  §  69 
ante;  repealed  March  8,  1907,  Stats,  and  Amdts.  1907,  p.  141, 
Kerr's  Stats,   and  Amdts.    1906-7,   p.    411.     In  effect  immediately. 

Incorporated  in  Article  XVI.  of  Ch.  Ill,  Part  III.  Title  I,  of  the 
Political  Code.     See  Pol.  C.    |  594. 

§420.  CERTAIN  INSURANCE  COMPANIES  TO 
HAVE  A  CAPITAL  STOCK  OF  ONE  HUNDRED 
THOUSAND      DOLLARS     [repealed]. 

History:  Enacted  April  1,  1878,  Code  Amdts.  1877-8,  p.  SO;  re- 
pealed March  8,  1907,  Stats,  and  Amdts.  1907,  p.  141,  Kerr's 
Stats,  and  Amdts.   1906-7,  p.  411.     In  effect  immediately. 

Incorporated  in  Pol.  C.  as  noted  under  last  section. 

§421.  INVESTMENT  OF  CAPITAL  AND  ACCUMU- 
LATIONS OF  CERTAIN  CORPORATIONS.  REPORTS 
OF  OFFICERS.  Corporations  organized  under  the  laws  of 
this  state  for  the  transaction  of  any  kind  of  insurance  busi- 
ness authorized  by  such  laws  may  invest  their  capital,  sur- 
plus and  accumulations  in  the  purchase  of,  or  loans  upon 
any  of  the  securities  specified  in  subdivisions  one  to  five  in- 
clusive of  this  section. 

177 


§421  CIVIL    CODE.  [Div.I,Pt.IV. 

1.  [United  States  bonds.]  Bonds  or  interest-bearing  notes 
or  obligations  of  the  United  States  or  those  for  which  the 
faith  and  credit  of  the  United  States  are  pledged  for  the 
payment  of  principal  and  interest. 

2.  Bonds  of  this  state  or  those  for  which  the  faith  and 
credit  of  the  State  of  California  are  pledged  for  the  pay- 
ment of  principal  and  interest  and  bonds  of  any  other  state 
in  the  United  States  that  has  not,  within  five  years  next 
preceding  such  investment  by  such  insurance  company,  de- 
faulted in  payment  of  any  part  of  either  principal  or  inter- 
est  due   upon   any   legally   authorized  bond   issue. 

3.  [County,  etc.,  bonds.]  Bonds  or  interest-bearing  notes 
or  obligations  issued  under  authority  of  law  by  any  county, 
municipality  or  school  district  in  this  state  or  in  any  other 
state  or  territory  of  the  United  States;  provided,  that  said 
county,  municipality  or  school  district  or  the  state  or  terri- 
tory in  which  it  is  located  has  not,  within  two  years  next 
preceding  such  investment  by  such  insurance  company,  de- 
faulted in  payment  of  any  part  of  either  principal  or  interest 
due   upon   any   legally  authorized   bond   issue. 

4.  [Road  division,  etc.,  bonds.]  Bonds  of  any  permanent 
road  division  in  this  state,  and,  any  irrigation  district  bonds 
which  the  law  may  now  or  hereafter  authorize  as  legal  in- 
vestments for  insurance  companies;  provided,  that  the  to- 
tal amount  of  bonds  issued  by  any  such  irrigation  district 
does  not  exceed  sixty  per  centum  of  the  aggregate  market 
value  of  the  lands  within  such  district,  and  of  the  water, 
water  rights,  canals,  reservoirs,  reservoir  sites  and  irriga- 
tion works  owned  or  to  be  acquired  or  constructed  with 
the  proceeds  of  any  such  bonds,  by  such  district,  such  facts 
in  reference  to  bonds  of  irrigation  districts  to  be  determined 
by  a  cominission  now  or  hereafter  authorized  by  law  to 
ascertain   and   report  upon   such   facts. 

5.  [First  mortgage  notes.]  (a)  Xotes  or  bonds  secured  by 
first  mortgage  or  deed  of  trust  or  other  first  lien  upon  real 
estate,    improved    or    unimproved;    provided,    that    the    prin- 

178 


Tit. II, ch. I.]        INVESTMENTS,   ACCUMULATIONS.  §421 

cipal  so  loaned  or  the  entire  note  or  bond  issue  so  secured 
shall  not  exceed  sixty  per  centum  of  the  market  value  of 
such  real  estate,  or  of  such  real  estate  with  improvements 
taken  as  security  at  the  date  of  investment;  provided,  also, 
in  case  said  loan  is  made,  or  said  note  or  bond  issue  created 
for  a  building  loan  on  real  estate,  that  at  no  time  shall  the 
principal  so  loaned  or  the  entire  outstanding  note  or  bond 
issue  exceed  sixty  per  centum  of  the  market  value  of  the 
real  estate  and  the  actual  cost  of  the  improvements  thereon 
taken   as   security;    or 

[Notes  guaranteed  by  policy  of  mortgage  insurance.]      (b) 

Notes  or  bonds  secured  by  mortgage  or  deed  of  trust, 
payment  of  which  is  guaranteed  by  a  policy  of  mortgage 
insurance,  and  mortgage  participation  certificates,  issued  by 
a  mortgage  insurance  company  in  accordance  with  the  pro- 
visions of  chapter  VIII  of  title  II  of  part  IV  of  division  first 
of  the  Civil  Code;  provided,  that  no  insurance  corporation 
shall  make  any  investment  in  any  of  the  securities  specified 
in  subdivisions  one,  two,  three,  four  and  five  of  this  section 
in  an  amount  exceeding  the  market  value  of  such  security, 
at   the   date   of   such   investment. 

6.  [Investment  of  balance  of  capital.]  Corporations  or- 
ganized for  and  engaged  in  the  business  of  fire,  life  or 
marine  insurance,  may,  after  the  investment  of  two  hundred 
thousand  dollars,  and  corporations  organized  for  and  engaged 
in  the  business  of  transacting  any  other  kind  of  insurance 
authorized  by  law,  except  mortgage  insurance,  may  also, 
after  the  investment  of  one  hundred  thousand  dollars  in  any 
of  the  securities  specified  in  subdivisions  one,  two,  three, 
four  and  five  of  this  section,  invest  the  balance  of  their  cap- 
ital, surplus  and  any  accumulations  in  the  purchase  of  or 
loans  upon  the  stock  of  any  corporation  (except  a  mining- 
corporation)  organized  and  carrying  on  business  under  the 
laws'  of  this  state,  or  the  laws  of  the  United  States,  which 
stocks  have,  at  the  date  of  such  investment,  a  market  value 
of  not  less  than   their  paid-in  value,  or  in  the   purchase  of, 

179 


§421  CIVIL   CODE.  [Div.I.Pt.IV. 

or  loans  upon,  interest-bearing  bonds  issued  by  a  corpora- 
tion organized  under  the  laws  of  any  state  or  territory  in 
the  United  States,  which  corporation  has  not,  within  five 
years  next  preceding  the  date  of  such  investment,  defaulted 
in  payment  of  any  part  of  either  principal  or  interest  of  any 
bond  of  the  issue  of  which  the  bonds  which  comprise  such 
investment  form  a  part,  and  which  stocks  or  bonds  must^  in 
each  case,  be  rated  as  first  class  securities;  provided,  that  any 
investment  made,  under  the  provisions  of  this  subdivision 
of  this  section  shall  be  approved  by  vote  of  two-thirds  of 
all  the  directors  of  the  investing  corporation.  Such  ap- 
proval shall  be  entered  upon  the  records  or  minutes  of  such 
corporation.  Such  entry  must  show  the  fact  of  making  such 
investment,  the  amount  thereof,  the  name  of  each  director 
voting  to  approve  the  same,  the  amount,  character  and  value 
of  the  security  purchased  -or  taken  as  collateral,  and  if 
the  investment  be  a  loan,  the  name  of  the  -borrower,  the 
rate  of  interest  thereon,  and  the  date  when  the  loan  will 
become  due  or  payable.  It  shall  be  the  duty  of  the  secre- 
tary of  any  such  investing  corporation  to  report  in  writing 
during  the  months  of  January  and  July  of  each  year  to  the 
insurance  commissioner,  the  data  above  set  forth  respecting 
each  such  investment,  and  the  insurance  commissioner  may, 
if  any  such  investinent  is  not  approved  by  him,  require  the 
corporation   to   sell  or  dispose   of  the   same. 

7.  [Policy  loans.]  Life  insurance  companies  may  also  loan 
upon  their  ov\'n  policies;  provided,  that  the  amount  so  loaned 
upon  each  policy  shall  not  exceed  the  reserve  against  said 
policy  at  the  time  said  loan  is  made;  provided,  further,  that 
no  policy  loans  whatever  shall  ever  be  used  as  security  which 
may  be  deposited  with  the  insurance  commissioner  under 
section  six  hundred  thirty-four  of  the  Political  Code;  and 
provided,  further,  that  whenever  any  such  loan  in  any  amount 
is  made  on  a  policy  registered  with  the  insurance  commis- 
sioner under  said  section  six  hundred  thirty-four  of  the  Po- 
litical Code,  such  registration  shall  be  forthwith  canceled. 

180 


Tit. II, ch. I.]       REPORT  ON  STOCK  AND  BONDS.  §422 

History:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  355,  held  unconstitutional,  see  his- 
tory §  4  C.  C;  re-enacted  March  3,  1905,  Stats,  and  Amdts.  1905, 
p.  34,  also  re-enacted  March  21,  1905  with  slight  variations 
which  latter  enactment  is  given  in  Kerr's  Cyc.  Codes,  Pocket 
Codes  of  1909  and  Cumulative  Supplement  1906-1913  as  §  421[a]; 
repeal  enacted  March  18,  1907,  Stats,  and  Amdts.  1907,  p.  597, 
Kerr's  Stats,  and  Amdts.  1906-7^  p.  411;  the  re-enactment  ap- 
proved March  21,  1905,  and  retained  as  number  §  421[a]  as 
above  indicated  "was  amended  by  Act  of  June  6,  1913,  and  num- 
bered §421,  Stats,  and  Amdts.  1913,  p.  488;  June  12,  1915,  Stats. 
and  Amdts.  1915,  p.  1532.     In  effect  August  11,  1915. 


§422.  REPORT  ON  STOCKS  AND  BONDS  HELD  BY 
INSURANCE  COMPANIES.  If  any  domestic  insurance 
corporation  shall  have  invested  any  of  its  funds  in  or  loaned 
any  of  its  funds  upon  the  stock,  bonds  or  other  evidences 
of  debt  of  other  corporations  or  of  any  nation,  state,  county, 
city,  village,  school  district,  municipality,  or  other  civil  di- 
vision of  any  state,  pursuant  to  the  laws  of  this  state,  and 
the  insurance  commission  shall  have  reason  to  believe  that 
such  stock,  bonds  or  other  evidences  of  debt  are  not  amply 
secured  or  are  not  yielding  an  income,  he  may  direct  it  to 
report  to  him  under  oath  the  amount  thereof,  the  security 
therefor  and  its  market  value.  No  stock  and  no  bond  or 
other  evidence  of  debt  if  in  default  as  to  principal  or  interest, 
or  if  not  amply  secured,  shall  be  valued  as  an  asset  of  the 
corporation  above  its   market  value. 

[How  valued.]  All  bonds  or  other  evidences  of  debt  held 
by  anj'  insurance  corporation  authorized  to  do  business  in 
this  state,  if  amply  secured  and  if  not  in  default  as  to  prin- 
cipal or  interest,  may  in  the  discretion  of  the  insurance  com- 
missioner, be  valued  as  follows:  If  purchased  at  par  at  the 
par  value;  if  purchased  above  or  below  par,  on  the  basis 
of  the  purchase  price  adjusted  so  as  to  bring  the  value  to 
par  at  maturity  and  so  as  to  yield  the  effective  rate  of  inter- 
est at  which  the  purchase  was  made;  provided,  that  the  pur- 
chase price  shall  in  no  case  be  taken  at  a  higher  figure  than 

181 


§422  CIVIL    CODE.  [Div.I,Pt.IV. 

the  actual  market  value  at  the  time  of  purchase;  and  pro- 
vided, further,  that  the  insurance  commissioner  shall  have 
full  discretion  in  determining  the  method  of  calculating  val- 
ues according  to  the  foregoing  rule,  and  the  values  found  by 
him  in  accordance  with  such  method  shall  be  final  and  bind- 
ing; provided,  also,  that  any  such  corporation  may  return 
such  bonds  or  other  evidence  of  debt  at  their  market  value 
or  their  book  value,  but  in  no  event  at  an  aggregate  value 
exceeding  the  aggregate  of  the  values  calculated  according  to 
the  foregoing  rule. 

History:      Enacted  June  6,   1913,  Stats  and  Amdts.   1913,  p.   464. 
In  eflEect  August  10,  1913. 


182 


Tit. II, ch. II.]     FIRE  AND  MARINE  COMPANIES.  §§424,425 


CHAPTER  II. 

[The  title  and  section  lieadings  of  cliapter  II  of  title  II,  of 
part  IV,  of  division  first,  of  the  Civil  Code  are  hereby  changed 
to  read  as  follows   (See  Stats,  and  Amdts.   1913,  p.  487):] 

FIRE  AND  MARINE   INSURANCE   CORPORATIONS 

§  424.     Payment    of    subscriptions.      Capital    to    be    all    paid    in 

twelve  months. 
§  425.     Certificate  of  capital  stock  paid  up  to  be  filed,  and  when. 
§  426.     Property   which   may   be   insured. 
[§  427.   Funds  may  be  invested,   how.     Repealed.] 
§  428.     Limit  of  one   risk. 

§  429.     Amounts    to    be    reserved    before    making   dividends. 
§  430.      Reservations   by  companies   with   less   than   two   hundred 

thousand   dollars   capital. 
[§431.  Aniount    to    be    reserved    by    life     insurance    companies. 

Repealed.] 
§  432.      Accumulate    surplus    fund    [repealed]. 


§424.  PAYMENT  OF  SUBSCRIPTIONS.  CAPITAL 
TO  BE  ALL  PAID  IN  TWELVE  MONTHS.  The  entire 
capital  stock  of  every  fire  or  marine  insurance  corporation 
must  be  paid  up  in  cash  w^ithin  twelve  months  from  the  filing 
of  the  articles  of  incorporation,  and  no  policy  of  insurance 
must  be  issued  or  risk  taken  until  twenty-five  per  cent  of 
the  whole   capital  stock  is  paid  up. 

Hi.story:     Enacted  March  21,  1872. 


§425.  CERTIFICATE  OF  CAPITAL  STOCK  PAID 
UP  TO  BE  FILED,  AND  WHEN.  The  president  and  a 
majority  of  the  directors  must,  within  thirty  days  after  the 
payment  of  the  twenty-five  per  cent  of  the  capital  stock, 
and  also  within  thirty  days  after  the  payment  of  the  last 
instalment  or  assessment  of  the  capital  stock  limited  and 
fixed,  prepare,   subscribe,  and    swear   to   a   certificate   setting 

183 


§§426-428  CIVIL  CODE.  [Div.I,Pt.IV. 

forth  the  amount  of  the  fixed  capital  and  the  amount  thereof 
paid  up  at  the  times  respectively  in  this  section  named,  and 
file  the  same  in  the  office  of  the  county  clerk  of  the  county 
where  the  principal  place  of  business  of  the  corporation  is 
located,  and  a  duplicate  thereof,  similarly  executed,  with  the 
insurance  commissioner. 

History:     Enacted  March  21,  1872. 


§426.     PROPERTY     WHICH     MAY     BE     INSURED. 

Every  corporation  formed  for  fire  or  marine  insurance,  or 
both,  may  make  insurance  on  all  insurable  interests  within 
the  scope  of  its  articles  of  incorporation,  and  may  cause 
itself  to  be  reinsured. 

History:     Enacted  March  21,  1S72. 


§427.     FUNDS  MAY  BE  INVESTED,  HOW   [repealed]. 

HLstory:  Enacted  March  21,  1ST2;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  210;  April  1,  1878,  Code  Amdts.  1877-8,  p. 
81;  March  5,  1887,  Stats,  and  Amdts.  1887,  p.  22;  March  6,  1899, 
Stats,  and  Amds.  1899,  pp.  66-68  (became  la'w,  under  constitu- 
tional provision,  without  governor's  approval);  repealed  March 
3,  1905,  Stats,  and  Amdts.  190.5,  p.  34;  re-repealed  March  21,  1905, 
Stats,  and  Amdts.  1905,  p.  628. 


§428.  LIMIT  OF  ONE  RISK.  Fire  and  marine  insur- 
ance corporations  must  never  take,  on  any  one  risk,  whether 
it  is  a  marine  insurance  or  an  insurance  against  fire,  a  sum 
exceeding  one  tenth  part  of  their  capital  actually  paid  m, 
and  intact  at  the  time  of  taking  such  risk,  without  at  once 
■reinsuring  the  excess  above  one  tenth. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  210;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  357,  held  unconsti- 
tutional, see  history,  §4  ante;  re-amended  March  21,  1905.  p. 
570. 

184 


Tit. II, ch. 11. J  DIVIDENDS— RESERVE.  §§429,430 

§429.  AMOUNTS  TO  BE  RESERVED  BEFORE 
MAKING  DIVIDENDS.  No  corporation  formed  subse- 
quent to  April  first,  eighteen  hundred  and  seventy-eight,  un- 
der the  laws  of  this  state,  and  transacting  fire,  marine  or 
inland  navigation  insurance  business,  must  make  any  divi- 
dends except  from  profits  remaining  on  hand  after  retaining 
unimpaired: 

1.  The    entire    subscribed   capital   stock. 

2.  All  the  premiums  received  or  receiv-able  on  outstanding 
marine  or  inland  risks,  except  marine  time   risks. 

3.  A  fund  equal  to  one-half  of  the  amount  of  all  premiums 
on  all  other  risks  not  terminated  at  the  time  of  making  such 
dividend. 

4.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course 
of  settlement,  and  all  liabilities  for  expenses  and  taxes. 

HLstory:  Enacted  March  12,  1872;  amended  April  1,  1878, 
Code  Amdts.  1877-8,  p.  81;  March  5,  1887.  Stats,  and  Amdts. 
1S87,  p.  23;  June  6,  191.3,  Stats,  and  Amdts.  1913,  p.  489.  In 
effect  August  10,  1913. 


§430.  RESERVATIONS  BY  COMPANIES  WITH 
LESS  THAN  TWO  HUNDRED  THOUSAND  DOLLARS 
CAPITAL.  No  fire  or  marine  insurance  corporation,  with 
a  subscribed  capital  of  less  than  two  hundred  thousand  dol- 
lars, must  declare  an}'  dividends,  except  from  profits  re- 
maining  on   hand   after    reserving: 

1.  A  sum  necessary  to  form,  with  the  subscribed  capital 
stock,  the  aggregate  sum  of  two  hundred  thousand  dollars; 

2.  All  the  premiums  received  or  receivable  on  outstanding 
marine  or  inland  risks,  except  marine  time  risks; 

3.  A  fund  equal  to  one-half  the  amount  of  all  premiums 
on  fire  risks  and  marine  time  risks  not  terminated  at  the 
time  of  making  such  dividend; 

4.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course 
of  settlement,  and  all  liabilities  for  expenses  and  taxes. 

History:     Enacted  March  21,  1872. 

185 


§§431,432  CIVIL  CODE.  [Div.I.Pt.IV. 

§431.  AMOUNT  TO  BE  RESERVED  BY  LIFE  IN- 
SURANCE   COMPANIES    [repealed]. 

History:  Enacted  April  1,  ISTS,  Code  Amdts.  1877-8,  p.  81; 
repealed  by  Code  Commission,  Act  March  16,  1901,  Stats,  and 
Amdts.  1900-1,  p.  357.  held  unconstitutional;  see  history,  §  4 
ante;  re-repealed  March  21,   1905,  Stats,  and  Amdts.  1905,  p.   57^1. 

§432.     ACCUMULATE   SURPLUS  FUND   [repealed]. 

History:  Enacted  March  5,  1887,  Stats,  and  Amdts.  1887,  p. 
23;  repealed  June  6,  1913,  Stats,  and  Amdts.  1913,  p.  489.  In 
effect  August   10,    1913. 


186 


Tit. II, ch. III.]      MUTUAL,  LIFE,   ETC.— CAPITAL.  §437 


CHAPTER  III. 

MUTUAL  LIFE,   HEALTH,  AND  ACCIDENT   INSURANCE 
CORPORATIONS. 

§  437.     Capital   stock.     Guarantee  fund. 

§  438.     Of  what  guarantee   fund  shall  consist. 

§  439.     What    constitutes,    and    deficiency    in    fixed    capital. 

§  440.     Declaration  of  fixed  capital  to  be  filed. 

§  441.  Guarantee  notes  and  interest.  [Commission  and  interest 
allowed.] 

§  442.     Insured  entitled  to   vote,   when. 

§  443.     Number  of  directors,  how  altered. 

§  444.     Investment    of    capital    stock    [repealed]. 

§  445.  Limitation  to  the  holding  of  stock,  etc.,  may  be  pro- 
vided   for    in    by-laws. 

§  446.     Premiums,    how    payable. 

§  447.  Insurance  companies  to  furnish  data  to  insurance  com- 
missioner.     Employment    of   actuary    [repealed]. 

§  448.     No  stamps   required  on  accident  insurance  [repealed]. 

§  449.      [Valuation    of    policies.]      Retaliatory    clause    [repealed]. 

§  450.     Policies    issued    within    state.       [Provisions    of.] 

§  451.     Certain   orders    not   insurance    companies    [repealed]. 

§  452.     Corporations,  life  insurance.     Dividends,  how  made. 


§437.     CAPITAL      STOCK.     GUARANTEE      FUND. 

Every  corporation  formed  for  the  purpose  of  mutual  insur- 
ance on  the  lives  or  health  of  persons,  or  against  accidents 
to  persons  for  life  or  any  fixed  period  of  time,  or  to  pur- 
chase and  sell  annuities,  must  have  a  capital  stock  of  not 
less  than  two  hundred  thousand  dollars.  It  must  not  make 
any  insurance  upon  any  risk  or  transact  any  other  business 
as  a  corporation  until  its  capital  stock  is  fully  paid  up  in 
cash,  nor  until  it  has  also  obtained  a  fund,  to  be  known  as  a 
"guarantee  fund,"  of  not  less  than  two  hundred  and  fifty 
thousand"  dollars,  as  is  hereinafter  provided.  If  more  than 
the  requisite  amount  is  subscribed,  the  stock  must  be  dis- 
tributed  pro   rata   among  the  subscribers. 

187 


§438  CIVIL   CODE.  [Div.I.Pt.IV. 

Any  subscription  may  be  rejected  by  the  board  of  di- 
rectors or  the  committee  thereof,  either  as  to  the  whole  or 
any  part  thereof,  and  must  be,  so  far  as  rejected,  without 
effect,  nothing  in  this  section  shall  be  deemed  to  contravene 
any  of  the  provisions  of  section  four  hundred  and  fifty-one. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  357,  held 
unconstitutional,    see    history,    §  4    ante;    re-amended   March    IS, 

1905,   Stats,  and  Amdts.   1905,  pp.   183-1S4. 

§  438.  OF  WHAT  GUARANTEE  FUND  SHALL  CON- 
SIST. The  guarantee  fund  mentioned  in  the  preceding  sec- 
tion must  consist  of  the  promissory  notes  of  solvent  par- 
ties, approved  by  the  board  of  directors  and  by  each  other, 
paj'able  to  the  corporation  or  its  order,  and  at  such  times, 
in  such  modes,  and  in  such  sums,  with  or  without  interest, 
and  conformable  in  all  other  respects  to  such  requirements 
as  the  board  of  directors  prescribe;  but  tlie  amount  of  the 
notes  given  by  any  one  person  must  not  exceed  in  the  whole 
the  sum  of  five  thousand  dollars,  exclusive  of  interest.  Such 
notes  must  be  payable  absolutely  and  at  the  option  of  the 
corporation;  they  must  be  negotiable,  and  may  be  indorsed 
and  transferred,  or  converted  into  cash,  or  otherwise  dealt 
with  by  the  corporation,  at  its  discretion,  without  reference 
to  any  contingency  of  losses  dr  expenses.  Such  notes,  or 
the  proceeds  thereof,  must  remain  with  the  corporation  as  a 
fund  for  the  better  security  of  its  dealers,  [persons  dealing 
with  it]  and  constitute  the  assets  of  the  corporation,  liable 
for  all  its  ^ebts,  obligations,  and  indebtedness  next  alter  its 
assets  from*  premiums  and  other  sources,  exclusive  of  capital 
stock,  until  the  net  earnings,  over  and  above  its  expenses, 
losses,  and  liabilifies,  shall  have  accumulated  in  cash,  or  se- 
curities in  which  the  net  earnings  have  been  invested,  to  a 
sum  which,  with  the  capital  stock,  is  equal  to  the  aggregate 
of  the  original  amounts  of  the  guarantee  fund  and  of  the 
capital    stock. 

History:  Enacted  March  21,  1872,  founded  upon  §  9,  Act 
April   2,    1866,   Stats.    1865-66,  p.    755. 

188 


Tit. II, ch. III.]  DEFICIENCY    IN    CAPITAL.  §§439,440 

§439.  WHAT  CONSTITUTES,  AND  DEFICIENCY  IN 
FIXED  CAPITAL.  The  sum  accumulated  as  provided  in 
the  preceding  section,  together  with  the  capital  stock,  shall 
become  and  remain  the  fixed  capital  of  the  corporation,  not 
subject  to  division  among  the  stockholders  or  parties  deal- 
ing with  it,  or  to  be  expended  in  any  manner  otherwise  than 
[as]  may  be  required  in  payment  of  the  corporation's  debts 
and  actual  expenses,  until  the  business  of  the  corporation  is 
closed,  its  debts  paid,  and  its  outstanding  policies  and  obli- 
gations of  every  kind  canceled  or  provided  for;  and  if  from 
any  cause  a  deficiency  at  any  time  occurs  in  such  fixed  capi- 
tal, no  further  division  of  profits  must  take  place  until  such 
deficiency  has  been  made  up. 

History:     Enacted  March  21,  1872. 


§  440.  DECLARATION  OF  FIXED  CAPITAL  TO  BE 
FILED.  Whenever  the  fixed  capital  of  the  corporation  is 
obtained  as  hereinbefore  provided,  the  president  of  the  cor- 
poration and  its  actuary,  or  its  secretary,  if  there  is  no  ac- 
tuary, must  make  a  declaration  in  writing,  sworn  to  before 
some  notary  public,  of  the  amount  of  such  fixed  capital,  and 
of  the  particular  kinds  of  property  composing  the  same,  with 
the  nature  and  amount  of  each  kind,  which  must  be  filed 
with  the  original  articles  of  incorporation,  and  a  copy,  cer- 
tified by  the  county  clerk,  must  be  published  for  at  least  four 
successive  weeks,  in  a  newspaper  published  in  the  county 
where  the  principal  business  of  the  corporation  is 
situated.  Upon  the  filing  of  such  declaration  the  guarantee 
fund  is  discharged  of  its  obligations,  and  all  notes  of  the 
fund  remaining  in  the  control  of  the  corporation,  and  not 
afifected  by  any  lien  thereon,  or  claim  of  that  nature,  must 
be  surrendered  by  it  to  the  makers  thereof,  respectively,  or 
other  parties  entitled  to  receive   the  same. 

History:     Enacted  March  21,  1872. 

189 


§§441-443  CIVIL  CODE.  [Div.I,Pt.IV. 

§441.  GUARANTEE  NOTES  AND  INTEREST. 
[COMMISSION  AND  INTEREST  ALLOWED.]  Until 
the  guarantee  fund  is  discharged  from  its  obligations,  as  pro- 
vided in  the  preceding  section,  no  note  must  be  withdrawn 
from  the  fund,  unless  another  note  of  equal  solvency  is  sub- 
stituted therefor,  with  the  approval  of  the  board  of  direc- 
tors. The  corporation  must  allow  a  commission,  not  ex- 
ceeding five  per  cent  per  annum,  on  all  such  guarantee  notes 
while  outstanding,  and  also  interest  on  all  moneys  paid  on 
such  notes  by  the  parties  liable  thereon,  at  the  rate  of  twelve 
per  cent  per  annum,  payable  half  yearly  until  repaid  by  the 
corporation,  unless  the  current  rate  of  interest  is  different 
from  this  amount,  in  which  case  the  rate  payable  may,  from 
time  to  time,  at  intervals  of  nqt  less  than  one  year,  be  in- 
creased or  reduced  by  the  board  of  directors,  so  as  to  con- 
form to  the  current  rate. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  210. 

§442.  INSURED  TO  BE  ENTITLED  TO  VOTE, 
WHEN.  After  the  filing  of  the  declaration  of  the  fixed 
capital,  as  in  this  article  provided,  the  holders  of  policies  of 
life  insurance  for  the  term  of  life,  on  which  the  premiums 
are  not  in  default,  may  vote  at  the  election  of  directors,  and 
have  one  vote  for  each  one  thousand  dollars  insured  by  their 
policies,  respectively. 

History:     Enacted  March   21,  1872. 

§443.     NUMBER   OF   DIRECTORS,  HOW  ALTERED. 

The  number  of  directors  specified  in  the  articles  of  incor- 
poration may  be  altered  from  time  to  time  during  the  ex- 
istence of  the  corporation  by  resolution,  at  the  annual  meet- 
ing of  a  majority  of  those  entitled  to  vote  at  the  election  of 
directors,  but  the  number  must  never  be  reduced  below  five. 

History:     Enacted  March   21,  1872. 

190 


Tit. 1 1, ch. 1 1 1.]         LIMITATION   ON   HOLDING.  §§  444_447 

§444.  INVESTMENT  OF  CAPITAL  STOCK  [re- 
pealed]. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  211;  repealed  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  357,  held  unconsti- 
tutional, see  history,  §  69  ante;  repealed  March  22,  1907.  Stats, 
and  Amdts.  1907,  p.  889,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  413. 
lu  effect  immediately. 

§445.  LIMITATION  TO  THE  HOLDING  OF  STOCK, 
ETC.,    MAY    BE    PROVIDED   FOR   IN    BY-LAWS.     The 

corporation  may,  by  its  by-laws,  limit  the  number  of  shares 
which  may  be  held  by  any  one  person,  and  make  such  other 
provisions  for  the  protection  of  the  stockholders  and  the 
better  securitj-  of  those  dealing  with  it  as  to  a  majority  of 
the  stockholders  may  seem  proper,  not  inconsistent  with 
the   provisions   of   this   title    or  part. 

History:     Enacted  March  21,  1872. 

§446.  PREMIUMS,  HOW  PAYABLE.  All  premiums 
must  be  payable  wholly  in  cash,  or  one  half  or  a  greater 
proportion  in  cash,  and  the  remainder  in  promissory  notes 
bearing  interest,  as  may  be  provided  for  by  the  by-laws. 
Agreements  and  policies  of  insurance  made  by  the  corpora- 
tion may  be  upon  the  basis  of  full  or  partial  participation  in 
the  profits,  or  without  any  participation  therein,  as  may  be 
provided  by  the  by-laws  and  agreed  between  the  parties. 

History:      Enacted  March   21,  1872. 

§447.  INSURANCE  COMPANIES  TO  FURNISH 
DATA  TO  INSURANCE  COMMISSIONER.  EMPLOY- 
MENT   OF    ACTUARY      [repealed]. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  211;  Feb.  25,  1889,  Stats,  and  Amdts.  1889, 
p.  36;  amended  by  Code  Commission,  Act  Marcli  16,  1901,  Stats, 
and    Amdts.    1900-1,    p.    357,    lield    unconstitutional,    see    history, 

191 


§§448-450  CIVIL  CODE.  [Div.I.Pt.IV. 

§  69  ante;  repealed  March  18,  1907,  Stats,  and  Amdts.  1907,  p. 
141,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  413.  lu  effect  Immedi- 
ately. Incorporated  In  Political  Code  as  noted  under  §  419.  See 
Pol.   C.    §  625.     , 

§448.  NO  STAMPS  REQUIRED  ON  ACCIDENT  IN- 
SURANCE   CONTRACT    [repealed]. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  358,  held 
unconstitutional;  see  history,  §  69  ante;  re-repealed  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  571;  re-repealed  March  8,  1907, 
Stats,  and  Amdts.  1907,  p.  141,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.    413.      In  effect   immediately. 

§449.  [VALUATION  OF  POLICIES.]  RETALIA- 
TORY  CLAUSE    [repealed]. 

History:  Enacted  March  30,  1874,  Code  Amdts.  1873-4,  p.  271; 
amended  by  Code  Commission,  Act  March  16,  1901,  Stafs.  and 
Amdts.  1900-1,  p.  358,  held  unconstitutional,  see  history,  §  69 
ante;  repealed  March  8,  1907,  Stats,  and  Amdts.  1907,  p.  141, 
Kerr's   Stats,   and  Amdts.    1906-7,   p.    413.      In   effect   immediately. 

Incorporated  in  Political  Code  as  noted  under  §  419  ante.  See 
Pol.  C.    §  618. 


§450.  POLICIES  ISSUED  WITHIN  THE  STATE. 
[PROVISIONS  OF.]  Every  contract  or  policy  of  life  in- 
surance hereinafter  made  by  any  person  or  corporation,  with 
and  upon  the  life  of  a  resident  of  this  state,  and  delivered 
within  this  state,  shall  provide,  in  event  of  default  of  any* 
premium  payment  after  three  full  annual  premiums  shall 
have  been  paid  on  such  policy,  that  without  any  action  on  the 
part  of  the  insured,  the  net  value  of  such  policy  based  upon 
the  reserve  basis  used  in  computing  the  premiums  and  val- 
ues thereunder  (the  policy  to  specify  the  mortality  table  and 
rate  of  interest  so  adopted)  which  net  value  shall  be  at  least 
equal  to  its  entire  net  reserve  at  the  date  of  default,  includ- 
ing that  of  dividend  additions,  if  any,  based  upon  a  standard 
not  low^r  than  the  American  experience  tables  of  mortality 

192 


Tit.II,ch.III.]  PAID-UP,  ETC.,   POLICIES.  §450 

with  interest  at  three  and  one-half  per  cent  yearly,  less  a 
surrender  charge  of  not  more  than  two  and  one-half  per 
cent  of  the  face  amount  of  the  policy  and  of  any  existing 
dividend  additions  thereto  and  less  any  indebtedness  to  the 
company  on  or  secured  by  the  policy,  shall  be  applied  as  a 
single  premium  to  the  purchase  of  one  of  the  following  stipu- 
lated forms  of  insurance: 

[Paid-up  non -participating  policies.]  1.  Paid-up  non-par- 
ticipating term  insurance  in  the  amount  of  the  face  of  the 
policy,  plus  dividend  additions,  if,  any,  for  such  a  period  as 
the  net  value  outlined  above  will  purchase  at  the  net  single 
premium,  at  the  attained  age  of  the  insured  at  the  time  of  the 
lapse,  based  upon  the  reserve  basis  described  in  the  policy; 
provided,  however,  that  under  endowment  contracts  the  term 
shall  not  extend  beyond  the  endowment  period  named  in  the 
original  contract,  and  the  excess  value,  if  any,  shall  be  ap- 
plied as  a  net  single  premium  to  purchase  in  the  same  man- 
ner paid-up  pure  endowment  insurance,  payable  at  the  end 
of  the  endowment  period  named  in  the  contract  if  the  in- 
sured be  then  living,  or, 

2.  Paid-up  non-participating  term  insurance  in  the  amount 
of  the  face  of  the  policy,  plus  dividend  additions,  if  any,  and 
less  any  outstanding  indebtedness,  for  such  a  period  as  the 
net  value  outlined  above  will  purchase  at  the  net  single  pre- 
mium, at  the  attained  age  of  the  insured,  based  upon  the  re- 
serve basis  described  in  the  policy;  provided,  however,  that 
under  endowment  contracts  the  term  shall  not  extend  be- 
yond the  endowment  period  named  in  the  original  contract, 
and  the  excess  value,  if  any,  shall  be  applied  as  a  net  single 
premium  to  purchase  in  the  same  manner  paid-up  pure  en- 
dowment insurance,  payable  at  the  end  of  the  endowment 
period  named  in  the  contract  if  the  insured  be  then  living,  or, 

3.  Paid-up  non-participating  insurance  payable  at  the  time 
and  on  the  conditions  named  in  the  policy  for  such  an  amount 
as  the  net  value  outlined  above  will  purchase  at  the  net  sin- 
gle premium,  at  the  attained  age  of  the  insured,  based  upon 
the   reserve  basis  described  in  the  policy. 

^  193 


§451  CIVIL    CODE.  [Div.I.Pt.IV. 

[Surrender  of  lapsed  policy.]  Provided,  however,  that  the 
policy  may  be  surrendered  to  the  company,  at  its  home  of- 
fice, upon  due  application  by  the  legal  owner  thereof,  within 
one  month  after  date  of  premium  default,  for  a  specified  cash 
value  which  shall  be  at  least  equal  to  the  sum  which  would 
be  otherwise  available  for  the  purchase  of  the  automatic  form 
of  insurance  provided  therein;  and  provided  further  that  the 
company  may  defer  payment  of  such  cash  value  for  not  more 
than  six  months  after  application  therefor  is  made. 

No  agreement  between  the  company  and  the  policyholder 
or  applicant  for  insurance  contrary  to  the  foregoing  shall  be 
held  to  waive  any  of  the  provisions  provided  above. 

Any  life  insurance  policy  issued  upon  the  life  of  a  resi- 
dent of  this  state,  and  delivered  within  this  state,  which  does 
not  contain  an  automatic  non-forfeiture  value  in  conformity 
vvith  the  foregoing  shall  be  construed  as  granting  non-par- 
ticipating term  insurance,  as  provided  in  paragraph  first  of 
this  section,  and  such  a  benefit  shall  be  read  into  the  con- 
tract. 

The  provisions  of  this  section  shall  not  apply  to  annu- 
ities, industrial  policies  or  to  term  contracts  issued  for  pe- 
riods of  twenty  years  or  less. 

[Repealing  clause.]  Sec.  2.  All  acts  and  parts  of  acts  in 
conflict  with  this  act  are   hereby  repealed. 

History:  Enacted  March  30,  1874,  Code  Amdts.  1S73-4,  p. 
271;  amended  April  1,  1878,  Code  Amdts.  1877-8,  p.  82;  April  26, 
1880,  Code  Amdts.  1880  (C.  C.  pt.),  p.  91;  by  Code  Commission, 
Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  358,  iield  un- 
constitutional; see  Kerr's  Cyc.  C.  C.  §  4;  May  1,  1911.  Stats, 
and  Amdts.  1911,  p.  1272. 

§451.  CERTAIN  ORDERS  NOT  INSURANCE  COM- 
PANIES   [repealed]. 

History:  Enacted  March  30.  1874,  Code  Amdts.  1873-4,  p.  271; 
amended  April  7,   1878,  Code  Amdts.  1877-8,  p.   82,  repealed  April 

194 


Tit.II.ch.III.]  DIVIDENDS— HOW   MADE.  §452 

26,  18S0,  Code  Amdts.  1880  (Pol.  Code  pt.),  p.  92;  re-enacted 
March  23,  1885,  Stats,  and  Amdts.  1885,  p.  221;  repealed  March  8, 
1907,  Stats,  and  Amdts.  1907.  p.  141.  Kerr's  Stats,  and  Amdts. 
1906-7,   p.    413.     In  effect   immediately. 

§452.  CORPORATIONS,  LIFE  INSURANCE.  DIVI- 
DENDS, HOW  MADE.  No  corporation  formed  under  the 
laws  of  this  state,  and  transacting  life  insurance  business, 
must  make  any  dividends,  except  from  profits  remaining  on 
hand  after  retaining  unimpaired: 

1.  The  entire  capital  stock; 

2.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course 
of  settlement,  and  all  liabilities  for  expenses  and  taxes; 

3.  A  sum  sufficient  to  reinsure  all  outstanding  policies,  as 
ascertained  and  determined  upon  the  basis  of  the  American 
experience  table  of  mortality,  and  interest  at  the  rate  of 
four  and  one  half  per  cent  per  annum. 

Histor.v:  New  section  added  by  Code  Commission,  Act  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  359,  held  unconstitutional, 
see  history,  §  4  ante;  re-enacted  March  21,  1905,  Stats,  and 
Amdts.  1905,  p.  571. 

Original  section  452,  regulating  determination  of  net  valua- 
tion of  policy  at  expiration  of  term",  was  enacted  April  1,  1878 
(Code  Amdts.  1877-8,  p.  83),  and  repealed  April  26,  1880,  Code 
Amdts.   ISSO    (Pol  Code   pt.),  p.    92. 


195 


§§  452a,  453  civil  code.  [Div.I,Pt.IV. 


[This  chapter  was  added  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  360,  held  unconstitutional,  see 
history,    §  1   ante;   re-enactsd   March   20,   1905.] 

CHAPTER  IV. 

MUTUAL   BENEFIT    AND    LIFE    ASSOCIATIONS. 

§  452a.  Formation   of  the  association. 

§  453.     Levying   of   assessments.      By-laws   which    may   be   made. 

§452a.  FORMATION  OF  THE  BENEFIT  ASSOCIA- 
TION. Associations  of  any  number  of  persons  ma3'  be 
formed  for  the  purpose  of  paying  the  nominee  of  any  mem- 
ber a  sum,  upon  the  death  of  the  member,  not  exceeding 
three  dollars  for  each  member  of  the  association,  but  not 
exceeding,  in  any  case,  the  sum  of  three  thousand  dollars. 
Such  association  maj'  be  formed  by  filing  articles  of  incor- 
poration in  the  office  of  the  clerk  of  the  county  in  which  the 
principal  place  of  business  is  situated  and  a  certified  copy 
of  such  articles  of  incorporation,  duly  certified  by  the  county 
clerk,  in  the  oifice  of  the  secretary  of  state.  Such  articles 
must  stale  the  name  of  the  corporation,  its  general  purposes, 
its  principal  place  of  business,  its  term  of  existence,  not  ex- 
ceeding fifty  years  and  the  names  and  residences  of  the  di- 
rectors selected  or  appointed  to  serve  for  the  first  year.  The 
articles  of  incorporation  must  be  signed  by  not  less  than 
twenty-five  members  of  such  association  and  must  be  ac- 
knowledged by  them  as  required  by  section  two  hundred  and 
ninety-two. 

HLstory:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
410;  amended  March  28,  1913,  Stats,  and  Amdts.  1913,  p.  12. 
Ill  effei't  August  10,  1913. 

§453.  LEVYING  OF  ASSESSMENTS.  BY-LAWS 
WHICH   MAY  BE  MADE.     Each  association  provided  for 

196 


Tit. II, ch. IV.]    MUTUAL  BENEFIT — ASSESSMENTS.  §453 

in  this  chapter  may,  on  the  death  of  a  member,  levy  an  as- 
•sessment  on  the  surviving  members  of  not  exceeding  three 
dollars  for  each  member,  and  collect  and  pay  the  same  to 
the  nominee  of  such  decedent,  and  may  also  provide  for  the 
payment  of  such  annual  payments  by  members  as  may  be 
deemed  just,  but  no  member  must  be  subject  to  any  annual 
assessment  in  excess  of  that  established  when  he  joined  the 
association.  The  association  may  make  such  by-laws  not 
inconsistent  with  the  laws  of  the  state  as  may  be  necessary 
for  its  government  and  the  transaction  of  its  business;  may, 
by  its  name,  sue  and  be  sued; 

[Loaning  funds  and  purchasing  real  estate.]  Loan  such 
funds  as  it  may  have  on  hand;  and  own  sufficient  real  estate 
for  its  business  purposes  and  such  as  it  may  be  necessary 
to  purchase  on  foreclosure  of  its  mortgages. 

History:     Enacted  March   20,   1905,   Stats,   and  Amdts.    1905,  pp. 

410-411. 


197 


§453a  CIVIL  CODE.  [Div.I,Pt.IV. 


[This  chapter  was  added  at  recommendation  of  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  pp.  360-362, 
lield  unconstitutional,  see  history,  §  4  ante;  re-enacted  March 
21,  1905.  A  cjodification  of  Act  April  1,  1876,  Stats.  1875-6,  pp. 
689-690,  as  amended  by  Act  March  29,  1897,  Stats,  and  Amdts. 
1S97,  pp.    223-225.] 

CHAPTER  V. 

CORPORATIONS  TO  DISCOVER  FIRE  AND  SAVE  PROPERTY 
AND    HUMAN   LIFE    FROM    DESTRUCTION    THEREBY. 

§  453a.  Powers   of   the   corporation.      [Underwriters.] 
§  453b.  Right   of  way   of  corporation   and    its    officers   when   run- 
ning to   fires. 
I  453c.   Yearly  meeting  of  corporation,  notice  to  be  given   there- 
of, and  proceedings  which  may  be  authorized  thereat. 
[Who  may  vote.] 

§453a.  POWERS  OF  THE  CORPORATION.  [UN- 
DERWRITERS.] Any  corporation  of  underwriters  hereto- 
fore organized  and  now  existing,  or  which  may  be  hereafter 
organized  under  the  laws  of  this  state,  for  the  purpose  of 
discovering  and  preventing  fires  and  of  saving  property  and 
human  life  from  conflagration,  and  doing  business  within  any 
inunicipal  corporation  of  this  state,  has  power,  at  its  own 
proper  cost  and  expense,  to  maintain  a  corps  of  men,  with 
proper  officers,  equipped  with  the  necessary  machinery  and 
apparatus  therefor,  whose  duty  it  is,  so  far  as  practicable, 
to  discover  and  prevent  fires  and  save  property  and  human 
life  from  conflagration;  and  for  the  eflFective  discharge  of  such 
duties,  autliority  is  hereby  granted  such  corps  to  enter  any 
building  on  fire,  or  in  which  property'  is  on  fire,  or  which 
such  corps  or  any  officer  thereof  deems  to  be  immediately 
exposed  to  any  existing  fire,  or  in  danger  of  taking  fire  from 
a    burning   building,    and    to    remove    or   otherwise    save   and 

198 


Tit.TI.ch.V.l  niGHT   OF   WAT   TO   FIRES.  §  453b 

protect    from    conflagration    or   damage    by   water   any   prop- 
erty,  during  and   immediately  after  such   fire. 

[Not  to  interfere  with  fire  departments.]  Nothing  in  this 
chapter  must  be  so  construed  as  in  any  degree  to  lessen, 
impair,  or  interfere  with  the  powers,  privileges,  duties,  or 
authority  of  the  regular  fire  department  of  such  municipality; 
nor  can  any  act  of  such  corps  justify  any  owner  of  any 
building  or  property  in  abandoning  such  building  or  prop- 
erty. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp. 
571-572;    see    introductory    note    to    this    chapter. 


453b.  RIGHT  OF  WAY  OF  CORPORATION  AND  ITS 
OFFICERS  WHEN  RUNNING  TO  FIRES.  Such  cor- 
poration, with  its  officers  and  corps,  when  running  to  a  fire 
with  its  horses,  vehicles,  and  salvage  apparatus,  has  the  same 
right  of  way  as  is  or  may  be  bestowed  by  any  ordinance 
of  the  municipality  or  law  of  this  state  upon  the  regular  fire 
department  of  the  municipality  wherein  such  corporation  is 
acting;  but  the  rights  of  such  fire  department  must  always 
be    paramount   to    the    rights   of   such    corporation. 

[Certain  laws  and  ordinances  governing  fire  departments 
to  govern.]  All  ordinances  now  existing  or  which  may  here- 
after be  passed  by  the  municipal  authorities  of  any  city  and 
county,  or  of  any  incorporated  city  or  town  wherein  such  a 
corporation  may  carry  on  business,  and  all  laws  of  this  state 
applicable  to  such  city  and  county,  or  city  or  town,  for  the 
conviction  or  punishment  of  any  person  or  persons  wilfully 
or  carelessly  obstructing  the  progress  of  the  apparatus  of 
the  fire  department  of  such  city  and  county,  or  city  or  town, 
while  going  to  a  fire,  or  of  any  person  or  persons  wilfully 
or  carelessly  injuring  any  animal  or  property  of  said  fire 
department,  are  equally  applicable  to  any  person  or -persons 
wilfully  or  carelessly  obstructing  the  progress  of  the  ap- 
paratus of  such  corporation  while  going  to  a  fire,  and  to  any 

199- 


§453c  CIVIL  CODE.  [Div.I,Pt.IV. 

person  or  persons  who  wilfully  or  carelessly  injures  any 
animal  or  property  of  such  corporation;  and  said  laws  and 
ordinances,  and  their  penalties,  may  be  enforced  in  the  same 
courts  and  in  the  same  manner,  and  with  equal  force  and  ef- 
fect, as  in  the  case  of  the   fire   department. 

History:      Enacted   March    21,    1905,   Stats,   and   Amdts.    1905,   p. 
572;   see   introductory  note   to   this   chapter. 


§453c.  YEARLY  MEETINGS  OF  CORPORATION, 
NOTICE  THEREOF,  PROCEEDINGS  WHICH  MAY  BE 
AUTHORIZED    THEREAT.     [WHO    MAY    VOTE].     In 

the  rfionth  of  July,  in  every  year,  there  must  be  held  a  meet- 
ing of  all  corporations  created  for  the  purposes  speciiied  in 
this  chapter;  of  which  ten  days'  previous  notice  must  be  in- 
serted in  at  least  one  daily  newspaper  published  in  the  mu- 
nicipality where  said  corporation  is  organized  or  established, 
at  which  meeting  each  insurance  company,  corporation,  as- 
sociation, underwriter,  agent,  person,  or  persons  doing  a  fire 
insurance  business  in  said  municipality,  whether  members  of 
said  corporation  or  not,  shall  have  a  right  to  be  represented, 
and  shall  be  entitled  to  one  vote. 

[Power  of  majority  present — Fixing  expenses.]  A  ma- 
jority of  the  whole  number  so  represented  has  power  to  de- 
cide upon  the  question  of  sustaining  the  fire  patrol  organized 
by  corporations  heretofore  created,  or  that  may  be  here- 
after created,  and  fixing  the  maximum  amount  of  expenses 
which  may  be  incurred  therefor  during  the  fiscal  year  next 
to  ensue,  which  amount  must  in  no  case  exceed  two  per 
centum  of  the  aggregate  premiums  returned  as  received,  as 
provided  in  this  section,  and  the  whole  of  such  amount,  or 
so  much  thereof  as  may  be  necessary,  may  be  assessed  upon 
all  insurance  companies,  corporations,  associations,  under- 
writers, agents,  person,  or  persons  who  assume  risks  and  ac- 
cept premiums  for  fire  insurance  in  said  municipality,  as  here- 
inbefore mentioned,  in  proportion  to  the  several  amounts  of 

200 


Tit.II.ch.V.]  PAYMENT  OF   EMPLOYEES.  §  453c 

premiums  returned,  as  received  by  each,  as  hereinafter  pro- 
vided,  and 

[Assessments,  how  collected.]  Such  assessment  is  collect- 
able by  and  in  the  name  of  said  corporation,  in  any  court 
of  law  in  the  state  of  California  having  jurisdiction,  in  such 
manner  and  at  such  time  or  times  as  said  corporation  may 
determine. 

[Payment  of  employees,  etc.,  how  provided  for.]  In  order 
to  provide  for  the  payment  of  persons  employed  by  said  cor- 
poration, and  to  maintain  suitable  rooms,  and  apparatus  for 
saving  life  and  property  contemplated,  said  corporation  is 
empowered  to  require  a  statement  to  be  furnished,  semi- 
annually, by  all  insurance  companies,  corporations,  associa- 
tions, underwriters,  agents,  or  persons,  of  the  aggregate 
amount  of  premiums  received  for  insuring  property  in  the 
municipality  where  said  corporation  is  organized  or  estab- 
lished, for  and  during  the  six  months  next  preceding  the 
first  day  of  July  and  the  first  day  of  January  of  each  year, 
which  statement  must  be  sworn  to  by  the  president  or  sec- 
retary of  the  corporation  or  association,  or  by  the  agent  or 
person  so  acting  or  affecting  such  insurance  in  said  munici- 
pality, and  must  be  handed  to  the  secretary  of  said  corpora- 
tion heretofore  created  or  hereafter  to  be  created  under  the 
provisions  of  this  chapter  within  ten  days  after  the  first  day 
of  July  and  the  first  day  of  January  of  each  year.  Said  secre- 
tary must,  within  the  ten  days  aforesaid,  by  written  or  print- 
ed demand  signed  by  him,  require  from  every  insurance  com- 
pany, corporation,  association,  underwriter,  agent,  or  person 
engaged  in  the  business  of  fire  insurance  in  the  municipality 
where  said  corporation  is  organized  or  established,  the  state- 
ment hereinbefore  provided  for.  Such  demand  may  be  de- 
livered personally  at  the  office  of  such  insurance  company, 
corporation,  association,  underwriter,  agent,  or  person  with- 

201 


§453c  CIVIL   CODE.  [Div.I,Pt.IV. 

in  said  municipality,  and  every  officer  of  such  insurance  com- 
pany, corporation,  association,  and  every  such  underwriter, 
agent,  or  person,  who,  for  fifteen  days  after  said  demand,  neg- 
lects to  render  the  statement  herein  provided  for,  forfeits 
fifty  dollars  for  the  use  of  said  corporation,  and  also  for- 
feits for  its  use  twenty-five  dollars  in  addition  for  every  day 
he  so  neglects  after  the  expiration  of  the  said  fifteen  days, 
and  such  additional  penalty  may  be  computed  and  collected 
up  to  the  time  of  the  trial  of  any  action  brought  for  the 
recovery  thereof.  The  penalty  herein  provided  for  may  be 
sued  for  and  collected,  with  costs,  in  any  court  of  law  within 
the  state  of  California  having  jurisdiction,  by  and  in  the 
name  of  said  corporation. 

History:      Enacted  March   21,  1905.  Stats,   and  Amdts.    1905,   pp 
572-574;   see  introductory  note  to  this  chapter. 


202 


Tit.II,ch.VI.]      LIFE,    HEALTH,    ETC.,   COMPANIES.  §  4S3d 


[This  chapter  Avas  added  at  the  recommendation  of  Code 
Commission,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-],  pp. 
359-366,  held  unconstitutional,  see  history,  §  4  ante;  re-enacted 
at  instance  Code  Commissioner  March  20,  1905,  Stats,  and  Amdts. 
1905,  p.  418.  A  codification  of  Act  March  19,  1891,  Stats,  and 
Amdts.  1891,  p.  126.  In  connection  witli  tliat  Act  see  San  Fran- 
cisco Sav.  Union  vs.  Long,  123  Cal.  107,  110,  55  Pac.  Rep.  708; 
Murray   vs.   Superior  Court,   129   Cal.   628,   633,   62  Pac.   Rep.   191.] 

CHAPTER  VI. 

LIFE,  HEALTH,  ACCIDENT,  AND  ANNUITY  OR  ENDOWMENT 
INSURANCE    ON    THE    ASSESSMENT   PLAN. 

§  453d.  Contracts    which   may    be    made    by,   defined. 

§  453e.  Formation  of  corporations;  issuing-  of  contracts;  invest- 
ments. 

§  453f.   Pre-existing  corporations,   riglit  of   to   reincorporate. 

§  453g.  Contracts  of  insurance;  contents  and  effects  of. 

§  453h.  Reserve    and    emergency    fund. 

§  453i.  Foreign  corporations;  conditions  precedent  to  doing  bus- 
iness in  tliis  state. 

§  453j.    Limitations   upon    right   to   issue   contracts   of    insurance. 

§  453k.   Exemptions  from  attachment  and  execution. 

§  4531.  Statements  to  be  filed  with  the  insurance  commissioner; 
proceedings  to  be  taken  by  him  thereon. 

§  453m.  Lapsing    of   policies,    when    forbidden. 

§  453n.   Fees  and  penalties. 

§  453o.  Insurance  commissioner  to  present  bills  for  certain  ex- 
penses. 

§  453p.   Exemption   of  fraternal  societies  from  this  chapter. 

§453d.  CONTRACTS  WHICH  MAY  BE  MADE  BY, 
DEFINED.  Every  contract  whereby  a  benefit  may  accrue 
to  a  party  or  parties  therein  named  upon  the  death  or  phys- 
ical disability  of  a  person  insured  thereunder,  or  for  the 
payment  of  any  sums  of  money  dependent  in  any  degree 
tipon  the  collection  of  assessments  or  dues  from  persons 
holding  similar  contracts,  is  deemed  a  contract  of  mutual 
insurance    upon    the    assessment   plan.      Such    contracts   must 

203 


§453e  CIVIL  CODE.  [Div.I.Pt.IV. 

show   that   the    HabiHties   of   the   insured    thereunder   are    not 
limited  to    fixed   premiums. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
418.     See  introductory  note  to  this  cliapter. 

A  codification  of  §  1,  Act  March  19,  1891,  Stats-,  and  Amdts. 
1891,  p.    126. 

§  453e.  FORMATION  OF  CORPORATIONS;  ISSUING 
CONTRACTS;  INVESTMENTS.  Corporations  may  be 
formed  to  carry  on  the  business  of  mutual  insurance  upon 
the  assessment  plan,  and  are  subject  only  to  the  provisions 
of    this    chapter. 

[Membership  before  contracts  issued.]  No  such  corpora- 
tion must  issue  contracts  of  insurance  until  at  least  two  hun- 
dred persons  have  applied,  in  writing,  for  membership  or 
insurance  therein,  and  have  paid  to  the  treasurer  of  such 
corporation  the  sum  of  five  thousand  dollars.  This  suin 
must  be  invested  in  bonds  or  securities,  approved  by  the  in- 
surance commissioner  of  this  state,  or  deposited  in  some 
bank  in   this   state  where   it  will   earn  interest. 

[Deposit  with  state  treasurer.]  Said  bonds  or  sectirities, 
or  evidences  of  such  deposit,  must  be  placed,  through  the 
insurance  commissioner  of  this  state,  with  the  state  treas- 
urer, and  the  principal  sum  must  be  held  in  trust  for  the 
contract-holders  of  such  corporation,  with  the  right  in  the 
corporation  to  exchange  said  bonds,  securities,  or  evidence 
of  bank  deposit  for  others  of  like  value.  Such  corporation 
must  also,  as  a  condition  precedent  to  issuing  any  contracts 
of  insurance,  obtain  the  written  certificate  of  the  insurance 
commissioner  that  it  has  complied  with  the  requirements  of 
this  chapter;  and  that  the  name  of  the  corporation  is  not 
the  same  as  that  of  any  other  corporation  of  this  or  other 
states,  as  indicated  by  the  insurance  department  reports  in 
his  office;  nor  must  the  commissioner  approve  any  name  or 
title  so  closely  resembling  another  as  to  mislead  the  public. 

[No  legal  existence  for  one  year,  unless,  etc.]  No  corpora- 
tion formed  hereunder  has  legal  existence  after  one  year  from 

204 


Tit. II, ch. VI.]     PRE-EXISTING  CORPORATION.        §§  453f,  453g 

the  date  of  its  articles,  unless  its  organization  has  been  com- 
pleted and  business  commenced;  nor  must  any  corporation 
or  individual  solicit,  or  cause  to  be  solicited,  any  business, 
until  such  corporation  has  complied  with  the  provisions  of 
section  six  hundred  and  thirty-three  of  the  Political  Code. 

[Construction.]  Nothing  contained  in  this  chapter  shall  be 
construed  to  exempt  any  corporation  from  the  provisions 
of  sections  two  hundred  and  ninety-six  and  two  hundred  and 
ninetj^-nine   of  this   code., 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  pp. 
41S-419.     See  introductory  note  to  this  chapter. 

A  codification  of  §  2  Act  March  19,  1891,  Stats,  and  Amdta. 
1N91,   pp.    126-127. 

§453f.  PRE-EXISTING  CORPORATION,  RIGHT  OF 
TO  REINCORPORATE.  Any  existing  corporation  en- 
gaged in  the  business  of  life,  health,  accident,  or  endowment 
insurance  on  the  assessment  plan  may  reincorporate  under 
the  provisions  of  this  code  and  chapter,  but  is  not  obliged 
to  do  so,  and  may,  without  such  reincorporation,  exercise  the 
rights,  powers,  and  privileges  conferred  by  this  chapter. 

Hi-story:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
419.     See  introductory  note  to  tliis  chapter. 

A  codification  of  §  3  Act  March  19,  1891,  Stats,  and  Amdts. 
1891,  p.   127. 

§453g.  CONTRACTS  OF  INSURANCE;  CONTENTS 
AND  EFFECTS  OF.  Every  contract  of  insurance  issued  by 
such  corporation  must  specify  the  sum  or  sums  to  be  paid 
upon  the  happening  of  the  contingency  insured  against,  and 
when  such  payments  must  be  made.  Unless  the  contract 
is  invalidated  by  fraud  or  by  breach  of  its  conditions,  the  cor- 
poration is  obligated  to  pay  the  beneficiary  the  amount  or 
amounts  specified  in  its  contract  at  the  time  or  times  therein 
named,  and  such  indebtedness  is  a  lien  upon  all  the  property 
of  such  corporation,  with  priority  over  all  indebtedness 
thereafter  incurred,  except  as  hereinafter  provided  in  case 
of   insolvency. 

205 


§4S3h  CIVIL  CODE.  [Div.I.Pt.lV. 

[Forfeiture    of   right   to   do   business    by    failure   to   pay.] 

Failure  to  make  such  payment,  within  thirty  days  after  no- 
tice, at  the  home  office,  by  mail,  as  provided  by  law,  of  a 
final  judgment,  unless  waiver  is  made  by  the  beneficiary, 
constitutes  a  forfeiture  of  the  right  to  do  business. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
419.     See  introductory   note  to   this  chapter. 

A  codification  of  §  4  Act  March  19,  1891,  Stats,  and  Amdts. 
1891,   p.    127. 

§453h.     RESERVATION    AND    EMERGENCY    FUND. 

Every  domestic  corporation,  organized  to  do  or  doing  busi- 
ness of  insurance  on  the  assessment  plan,  inust  accumulate 
a  reserve  or  emergency  fund,  which  must,  at  all  times,  be 
not  less  than  the  largest  benefit  contracted  to  be  paid  by  it 
to  any  one  person.  Every  corporation  organized  under  the 
provisions  of  this  chapter  must  accumulate  such  fund  within 
a  year  from  the  date  of  its  certificate  of  incorporation. 

[Investment  of  reserve  or  emergency  fund.]  Such  fund,  to 
the  extent  of  the  largest  amount  contracted  to  be  paid  by 
any  such  corporation  to  any  one  person,  must  be  invested  and 
deposited,  as  provided  in  section  four  hundred  and  fifty- 
three  e,  with  the  right  in  the  corporation  to  exchange  any 
such   securities   for   others   of   equal  value. 

[Deposit  part  of  fund.]  The  deposit  required  by  section 
four  hundred  and  fifty-three  e  constitutes  a  part  of  the 
reserve  required  by  this  section,  at  the  option  of  such  cor- 
poration. When  any  such  corporation  discontinues  business, 
this  fund  must  be  returned  to  such  corporation,  or  disposed 
of  as  may  be  determined  by  the  superior  court  of  the  coun- 
ty in  which  is  its  principal  place  of  business. 

History:  Enacted  March  20^  1905,  Stats,  and  Amdts.  1905,  p. 
418.     See  introductory  note  to  this  chapter. 

A  codification  of  §  5  Act  Marcii  19,  1891,  Stats,  and  Amdts. 
1S91,   pp.    127-128. 

206 


Tit.II,ch.VI.]  FOREIGN  CORPORATIONS.  §  453i 

§453i.  FOREIGN  CORPORATIONS.  CONDITIONS 
PRECEDENT    TO    DO    BUSINESS    IN    THIS  STATE, 

Corporations  organized  under  the  laws  of  any  other  state 
or  country  to  transact  the  business  of  mutual  assessment  in- 
surance must,  as  a  condition  precedent  to  transacting  busi- 
ness in  this  state,  comply  with  the  provisions  of  sections 
four  hundred  and  five  and  four  hundred  and  eight  of  this 
code,  and  deposit  with  the  insurance  commissioner  of  this 
state  a  certified  copy  of  its  charter  or  other  instrument  re- 
quired by  its  home  authorities;  a  statement  under  oath,  of 
its  president  or  secretary,  of  its  business  for  the  preceding 
year,  in  such  form  as  may  be  required  by  the  insurance  com- 
missioner of  this  state;  an  appointment  of  a  general  agent, 
service  upon  whom  binds  the  corporation;  a  certificate  that 
for  the  next  preceding  twelve  months  it  has  paid  in  full  the 
maximum  amount  named  in  its  contract  of  insurance;  a  cer- 
tificate from  the  proper  officer  of  its  state  or  government 
that  like  corporations  of  this  state  are  legally  entitled  to  do 
business  in  such  state  or  country;  copies  of  its  contracts  of 
insurance  and  applications,  which  must  show  that  the  lia- 
bilities of  its  members  are  not  limited  to  fixed  premiums; 
and  evidence,  satisfactory  to  the  insurance  commissioner, 
that  the  corporation  has  accumulated  a  fund  equal  to  that 
required  of  like  corporations  in  this  state,  constituting  a  re- 
serve or  surplus  fund,  held  in  trust  for  the  benefit  of  its 
contract-holders,  and  so  invested  and  held  as  required  by 
the  laws  of  the  state  or  government  under  which  such  cor- 
poration was  organized. 

[License,  issuance,  renewal,  and  revocation.]  The  insur- 
ance commissioner  must  thereupon  issue  a  license  to  such 
corporation  to  do  business  in  this  state.  This  license  must 
be  renewed  annually,  and  may  be  revoked  whenever  it  is 
ascertained  that  the  statements  required  to  be  made  by  this 
section  are  not  true.  Upon  such  revocation,  notice  thereof 
must  be  given  by  the  insurance  commissioner  by  publication 
in  some  newspaper  published  in  the  city  and  county  of  San 

207 


§453j  CIVIL    CODE.  [Div.I,Pt.IV. 

Francisco,  for  two  weeks,  daily,  and  no  new  contracts  must 
be  made  by  such  company  in  this  state. 

[License,  fees,  taxes,  and  penalties.]  When  any  other 
state  or  country  imposes  any  additional  license,  fees,  taxes, 
or  penalties  upon  any  corporation  organized  or  doing  busi- 
ness under  this  chapter,  like  license,  fees,  taxes,  or  penalties 
are  imposed  upon  corporations  of  the  same  kind  and  their 
agents  of  such  state  or  country  doing  business  in  this  state. 

Hi-story:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  pp. 
419-420.      See    introductory   note   to   this   chapter. 

A  codification  of  §  6  Act  March  19,  1S91,  Stats,  and  Amdts. 
1891,  p.  128.  As  to  appointment  of  agent  upon  whom  ser- 
vice may  be  made,  see  Act  April  1,  1872,  Stats.  1871-2,  p.   826. 

§453j.  LIMITATIONS  UPON  RIGHT  TO  ISSUE 
CONTRACTS  OF  INSURANCE.  No  corporation  doing 
business  under  this  chapter,  except  accident  or  casualty  cor- 
porations, must  issue  a  contract  of  insurance  upon  the  life  of 
any  person   under  fifteen  nor  over  sixty-one  years  of  age. 

Every  such  contract  of  insurance  must  be  founded  upon 
written  application  therefor,  and,  except  where  the  applica- 
tion is  for  health,  accident,  or  casualty  insurance  only,  or  for 
one  hundred  dollars  life  insurance  or  less,  such  application 
must  be  accompanied  bj^  the  report  of  a  reputable  physician, 
containing  a  detailed  statement  of  his  examination  of  the 
applicant,  showing  the  applicant  to  be  in  good  health,  and 
recommending  the  issuance  of  a  contract  of  insurance. 

[False  or  fraudulent  statement  by  solicitor,  etc.]  Any  so- 
licitor, agent,  employee,  examining  physician,  or  other  per- 
son, making  a  false  or  fraudulent  statement  to  any  corpora- 
tion doing  business  under  this  chapter,  with  reference  to 
any  application  for  insurance,  or  for  the  purpose  of  obtain- 
ing any  money  or  benefit  from  such  corporation,  is  guilty  of 
a  misdemeanor;  and  any  person  who  makes  a  false  state- 
ment of  any  material  fact  or  thing  in  a  sworn  statement  as 
to  the  death  or  disability  of  a  contract-holder,  in  any  such 

208 


Tit. II, ch. VI.]  EXEMPTION    FROM    ATTACHMENT.  §§  453^^  4531 

corporation  for  the  purpose  of  procuring  or  aiding  the  bene- 
ficiary or  beneficiaries  or  contract-holder  in  procuring  the 
payment  of  a  benefit  named  in  the  contract,  is  guilty  of 
perjury. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905.  pp. 
420-421.      See   introductory   note   to   this   chapter. 

A  codification  of  Act  March  19,  1891,  Stats,  and  Amdts.  1891, 
pp.    128-129. 

§453k.  EXEMPTIONS  FROM  ATTACHMENT  AND 
EXECUTION.  The  money,  benefit,  annuity,  endowment, 
charity,  relief,  or  aid  to  be  paid  as  provided  by  the  con- 
tracts issued  by  any  corporation  doing  business  under  this 
chapter,  is  not  liable  to  attachment  or  other  process,  nor 
to  be  seized,  taken,  appropriated,  or  applied  by  any  legal 
or  equitable  process,  nor  by  operation  of  law,  to  pay  any 
debts  or  liability  of  the  contract-holder  or  any  beneficiary 
named  thereunder. 

History:  Enacted  March  20,  190'5,  Stats,  and  Amdts.  1905,  p. 
421.     See  introductory   note   to   this  chapter. 

A  codification  of  §  8  Act  March  19,  1891,  Stats,  and  Amdts. 
1891,   p.    129. 

§453  1.  STATEMENT  TO  BE  FILED  WITH  THE  IN- 
SURANCE COMMISSIONER;  PROCEEDINGS  TO  BE 
TAKEN  BY  HIM  THEREON.  Every  corporation,  whether 
domestic  or  foreign,  doing  the  business  of  effecting  insur- 
ance on  the  assessment  plan  must,  annually,  on  or  before 
the  first  day  of  February,  file  with  the  insurance  commis- 
sioner, in  such  form  as  he  may  prescribe,  a  statement  of  its 
affairs  for  the  year  ending  on  the  preceding  thirty-first  day 
of  December.  The  insurance  commissioner,  in  person  or 
by  duly  authorized  deputy,  has  the  power  of  examination 
into  the  affairs  of  any  domestic  corporation  doing  business 
or  claiming  to  do  business  under  this  chapter,  at  any  time, 
in  his  discretion,  and  must  make  such  examination  at  least 
once  a  year. 

209 


§453m  CIVIL  CODE.  [Div.I,Pt.IV. 

[Revoking  authority  to  do  business;  procedure.]  If  he, 
after  an  examination  of  the  affairs  of  a  corporation,  finds 
that  it  is  not  doing  its  business  in  conformity  to  this  chap- 
ter, or  that  it  is  doing  a  fraudulent  or  unlawful  business, 
or  that  it  is  not  carrying  out  its  terms  of  contract,  or  that 
it  cannot,  within  three  inonths  from  the  date  of  notice  of 
default,  pay  its  obligations,  he  must  cite  the  president,  sec- 
retary, manager,  or  general  agent  of  the  corporation,  or  all 
of  them,  to  appear  before  him,  stating  the  time  and  place, 
to  show  cause  why  the  authority  of  the  corporation  to  do 
business  should  not  be  revoked,  and  if  cause  is  not  shown, 
then  he  must  report  the  facts  to  the  attorney-general  of  the 
state,  who  must  commence  proceedings  in  the  proper  court 
to  restrain  the  corporation  from  doing  any  further  business. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  190.5,  p. 
421.     See  introductory   note  to  this  chapter. 

A   codification    of    §§  9   and    10    Act  March    19,    1891,    Stats,  and 

Amdts.   1891,  p.   129.     Compare  Act  1856,  Stats.  1856.  p.   752.  See 

In  Matter  Calif.  Mut.  L.  Ins.  Co.,   181  Cal.   364,   22  Pac.  Rep.  869; 

Murray  vs.    Superior   Court,    129    Cal.    628,    633,    62   Pac.   Rep.  191. 

§453m.  LAPSING  OF  POLICIES.  WHEN  FORBID- 
DEN. No  policy  or  certificate  issued  by  any  corporation  or 
association  doing  business  under  the  provisions  of  this  chap- 
ter lapses  for  the  non-payment  of  any  assessments,  dues,  or 
premiums,  unless  the  corporation  or  association  has  first 
mailed  to  the  insured  under  such  policy  or  certificate,  at 
his  or  her  last  given  post-office  address,  a  notice  setting 
forth  the  amount  to  be  paid,  and  the  time  the  same  is  due 
and  payable;  and  such  notice  must  be  mailed  at  least  fifteen 
days  before  the  assessment  is  due;  provided,  that  such  cor- 
porations doing  business  under  this  chapter  as  collect  spe- 
cific amounts  at  specific  dates,  as  contained  in  the  contract, 
are  not  compelled  to  send  such  notices;  and  an  affidavit 
made  by  the  officer,  bookkeeper,  or  clerk  of  any  such  cor- 
poration   having    charge    of    the    mailing   of    notices,    setting 

210 


Tit.II.ch.VT.]  FEES   AND  PENALTIES.  §§  453n,  453o 

forth  the  facts  as  they  appear  on  the  records  in  the  office 
of  the  said  corporation,  showing  that  such  notice  was  mailed 
and  the  date  of  mailing,  is  conclusive  evidence  of  the  mailing 
of  such  notice.  ' 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp. 
421-422.      See   Introductory   note   to   this   chapter. 

A  codification  of  §  11  Act  March  19,  1891,  Stats,  and  Amdts. 
1891,   pp.    129-130. 

§453n.  FEES  AND  PENALTIES.  The  fees  for  filing 
statements,  certificates,  or  other  documents  required  by  this 
chapter,  or  for  any  service  or  act  of  the  insurance  commis- 
sioner, and  the  penalties  for  any  violation  of  this  chapter, 
must,  except  as  otherwise  provided  herein,  be  the  same  as 
provided  in  the  laws  of  this  state  relating  to  life  insurance 
companies,  and  must  be  disposed  of  as  provided  by  such 
laws. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905.  p. 
422.     See  introductory   note  to  tliis   chapter. 

A  codification  of  §  12  Act  March  19,  1891,  Stats,  and  Amdts. 
1891,    p.    130. 

§453o.  INSURANCE  COMMISSIONER  TO  PRESENT 
BILLS  FOR  CERTAIN  EXPENSES.  For  all  lawful  ex- 
penses under  this  chapter,  or  by  reason  of  any  of  its  pro- 
visions, in  the  prosecution  of  any  suit  or  proceeding,  or 
otherwise,  for  the  enforcement  of  the  provisions  of  this 
chapter,  the  insurance  commissioner  must  present  bills,  duly 
certified  by  him,  and  accompanied  with  vouchers,  to  the  state 
board  of  examiners,  who  may  allow  the  same,  and  direct 
payment  thereof  to  be  made;  and  the  state  controller  must 
draw  warrants  therefor  oji  the  state  treastirer  for  the  pay- 
ment of  the  same  to  the  insurance  commissioner,  out  of 
the  general  fund,  in  addition  to  the  ordinary  contingent  ex- 
pense. 

211 


§453p  CIVIL   CODE.  [Div.I.Pt.IV. 

History:      Enacted  March    20,   1905,   Stats,  and  Amdts.    1905,   p. 
422.     See   introductory  note  to  this  chapter. 

A  codification  of  §  13  Act  of  March  19,  1891,  Stats,  and  Amdts. 
1S91,  p.   130. 


§453p.  EXEMPTION  OF  FRATERNAL  SOCIETIES 
FROM  THIS  CHAPTER.  The  provisions  of  this  chapter 
do  not  apply  to  secret  or  fraternal  societies,  lodges,  or  coun- 
cils, which  conduct  their  business  and  secure  membership 
on  the  lodge  system  exclusively,  having  rittialistic  work  and 
ceremonies  in  their  societies,  lodges,  or  councils,  nor  to  any 
mutual  or  benefit  association  organized  or  formed  and  com- 
posed of  members  of  any  such  society,  lodge,  or  council 
exclusively. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
422.     See   introductory  note  to  this  chapter. 

A  codification  of  §  14  Act  March  19,  1891,  Stats,  and  Amdts. 
1891,  p.   130. 


212 


Tit.II.ch.VIT.]  TITLE  INSURANCE  COMPANIES.         §  453s,  453t 


[A  new  cliapter  is  hereby  added  (SLats.  anJ  Amdts.  liJ13,  p. 
490)  to  the  Civil  Code,  to  be  known  as  chapter  VII,  of  title  II, 
of  part  IV,  of  division  first,  of  said  Civil  Code,  relating  to  title 
in.surance    corporations,    and    to    read    as    follows:] 

CHAPTER  VII. 

TITLE    INSURANCE    CORPORATIONS. 

§  4.53s.  liiie    insurance    companies    subject     to     insurance     lav.'S 

and  insurance  commissioner. 
§  453t.   Guarantee   fund   and   investments. 
§  453u.  Title  insurance  surplus  fund. 
§  453v.  Policy  of  title  insurance  defined. 
§  4.53w.  Further  powers  of  title  insurance  companies. 
§  453x.  Combined    title    insurance    and    trust   company. 
§  453y.  Must    have    certificate    of    insurance    commissioner   before 

issuing  policy. 
§  453z.   Loans    to   directors,   officers    and    employees    [prohibited]. 

§453s.  TITLE  INSURANCE  COMPANIES  SUBJECT 
TO  INSURANCE  LAWS  AND  INSURANCE  COMMIS- 
SIONER. Every  title  insurance  company  shall  be  subject 
to  and  shall  comply  with  all  the  requirements  of  the  insur- 
ance laws  and  the  rules  a,nd  regulations  of  the  insurance  de- 
partment of  this  state,  and  the  insurance  commissioner  shall 
have  the  same  power  and  authority  regarding  any  such  cor- 
poration that  he  may  exercise  in  relation  to  other  insurance 
corporations  organized  tmder  the  laws  of  this  state,  includ- 
ing the  right  to  examine  and  inspect  the  financial  condition 
and  affairs  of  such  company  relating  to  the  insurance  busi- 
ness of  such  companj',  and  to  compel  compliance  with  the 
provisions  of  law  governing  any  such  corporation. 

History:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
490.     In  effect  August  10,  1913. 

§453t.     GUARANTEE    FUND     AND     INVESTMENTS. 

Every  title  insurance  company,  before  issuing  any  guarantee 

213 


§453t  CIVIL  CODE.  [Div.I.Pt.IV. 

or  policy  of  insurance,  shall  deposit  with  the  state  treasurer, 
as  herein  provided,  as  a  "guarantee  fund"  for  the  security 
and  protection  of  the  holders  of,  or  beneficiaries  under,  such 
guarantees  or  policies  of  insurance,  one  hundred  thousand 
dollars.  Any  such  deposit  may  be  made  either  in  lawful 
money  of  the  United  States  or  in  any  of  the  securities 
specified  in  subdivisions  one,  two,  three,  four  and  five  of 
section  four  hundred  twenty-one  of  this  code.  Said  money 
or  securities  shall  be  first  approved  by  the  insurance  com- 
missioner, and  upon  his  written  order,  deposited  with  the 
state  treasurer  for  the  purpose  herein  specified,  and  said 
treasurer  shall  give  his  receipt  therefor,  and  thereafter,  sub- 
ject to  the  provisions  of  this  chapter,  shall  hold  such  de- 
posits of  money  or  securities  for  the  security  and  pro- 
tection of  the  holders  of,  or  beneficiaries  under,  any  guar- 
antee or  policy  of  insurance  issued  by  such  company,  and 
the  state  shall  be  responsible  for  the  custody  and  safe  re- 
turn of  any  money  or  securities  so  deposited.  Said  securities 
or  money  so  deposited  may,  with  the  approval  of  the  in- 
surance commissioner,  be  withdrawn  or  exchanged  from 
time  to  time  for  other  like  securities,  or  lawful  money,  re- 
ceivable as  aforesaid.  So  long  as  the  company  so  depositing 
said  money  or  securities  shall  continue  solvent,  it  shall  have 
the  right  and  shall  be  permitted  by  the  state  treasurer  to 
receive  the  interest  and  dividends  on  any  securities  so  de- 
posited. Said  securities  and  money  shall  be  subject  to  sale 
and  transfer,  and  to  the  disposal  of  the  proceeds  thereof  by 
said  state  treasurer  only  on  the  order  of  a  court  of  competent 
jurisdiction  and  for  the  security  and  protection  of  the  hold- 
ers  of  such  guarantees  and  policies  of  insurance. 

[Mortgages.]  When  auy  part  of  the  securities  so  deposited 
with  the  state  treasurer  consists  of  notes  or  bonds  secured 
by  mortgage  or  deed  of  trust,  or  in  loans  upon  real  property 
secured  by  mortgage  or  deed  of  trust,  such  mortgages  or 
deeds  of  trust  shall  be  accompanied  by  evidence  ol  title 
issued  by  a  person,  company,  or  corporation  designated  or 
approved  bj^  the  insurance  commissioner  and  authorized  by 

214 


Tit.II,ch.VII.]     MORTGAGES— PLANT  INVESTMENT.        §  453t 

law  or  otherwise  found  by  the  insurance  commissioner  to  be 
competent  to  issue  such  evidence  of  title.  Such  evidence 
of  title  shall  consist  either  of  a  full  abstract  of  title,  a  full 
certificate  of  title,  or  a  guarantee  or  policy  of  title  insur- 
ance, and  such  evidence  of  title  shall  be  examined  and 
approved  by  or  under  the  direction  of  the  insurance  com- 
missioner. The  value  of  the  property  covered  by  each  such 
mortgage  or  deed  of  trust  shall  be  appraised  by  one  or 
more  appraisers  selected  or  approved  by  the  insurance  com- 
missioner. The  appraisers  shall  be  residents  of  the  county 
in  which  the  property  or  some  part  thereof  is  situated. 
The  reasonable  cost  of  examining  such  evidence  of  title  and 
of  making  such  appraisement,  shall  be  paid  by  the  title  in- 
surance company  making  such  deposit,  and  shall  not  ex- 
ceed twenty  dollars  for  examining  the  title  to  the  property 
covered  by  each  mortgage  or  deed  of  trust,  nor  five  dollars 
for  each  appraiser,  not  exceeding  two,  besides  the  necessary 
expenses  of  such  appraisers;  provided,  that  as  to  any  part 
of  the  securities  so  deposited  with  the  state  treasurer  which 
consists  of  notes  or  bonds  secured  by  mortgage  or  deed 
of  trust,  payment  of  which  is  guaranteed  by  a  policy  of 
mortgage  insurance,  or  of  mortgage  participation  certificates, 
issued  by  a  mortgage  insurance  company  in  accordance  with 
the  provisions  of  chapter  VIII  of  title  II  of  part  IV  of 
division  first  of  the  Civil  Code,  such  evidence  of  title  need 
not  be  required. 

[Plant  investment.]  Any  such  corporation  organized 
under  the  laws  of  this  state  and  having  a  capital  stock  paid 
in,  in  cash,  of  more  than  one  hundred  thousand  dollars,  after 
depositing  said  guarantee  fund  as  above  provided,  may  in- 
vest an  amount  not  exceeding  fifty  per  cent  of  its  subscribed 
capital  stock  in  the  preparation  and  purchase  of  materials 
or  plant  necessary  to  enable  it  to  engage  in  such  title  insur- 
ance business;  and  such  materials  or  plant  shall  be  deemed 
an  asset,  valued  at  the  actual  cost  thereof,  in  all  statements 
and  proceedings  required  by  law  for  the  ascertainment  and 
determination    of    the    condition    of    such    corporation,    or   at 

215 


§§453u,  453v  civil  code.  [Div.l.Pt.lV. 

such  lesser  value  as  may  be  estimated  by  such  corporation 
in  any  such  statement  or  proceeding,  or  omitted  entirely 
therefrom. 

History:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
490;  amended  June  7,  1915,  Stats,  and  Amdts.  1915,  p.  1265.  In 
effect  August   S,   1915. 

§  453u.  TITLE  INSURANCE  SURPLUS  FUND.  Every 
title  insurance  company  shall  annually  set  apart  a  sum  equal 
to  ten  per  cent  of  its  premiums  collected  during  the  year, 
w^hich  sums  shall  be  allow^ed  to  accumulate  until  a  fund  shall 
have  been  created  equal  in  amount  to  tw^enty-five  per  cent 
of  the  subscribed  capital  stock  of  such  corporation.  Such 
fund  shall  be  maintained  as  a  further  security  to  holders  of 
the  guaranties  and  policies  of  insurance  issued  by  such  cor- 
poration, and  shall  be  known  as  the  "Title  insurance  surplus 
fund;"  and  if  at  any  time  such  fund  shall  be  impaired  by 
reason  of  a  loss,  the  amount  by  which  it  may  be  impaired 
shall  be  restored  in  the  manner  hereinabove  provided  for 
its  accumulation.  The  reporting  of  a  loss  shall  be  deemed 
an  impairment  of  such  fund  for  the  purposes  of  this  sec- 
tion. 

[Dividends.]  Such  corporation  must  not  make  any  divi- 
dends except  from  profits  remaining  on  hand  after  retaining 
unimpaired: 

1.  The  entire  subscribed  capital  stock. 

2.  The  amount  set  apart  as  a  surplus  fund  under  the  pro- 
visions of  this  section. 

3.  A  sum  sufficient  to  pay  all  liabilities  for  expenses  and 
taxes,  and  all  losses  reported  or  in  course  of  settlement,  with- 
out impairment  of  the  title  insurance  surplus  fund  required 
to  be  set  apart  as  hereinabove  provided. 

Hi.story:  Enacted  June  6,  1913,  Stats,  and  Amdt.-.  1913,  p. 
491.      In   effect   August   10,    1913. 

§453v.     POLICY   OF  TITLE  INSURANCE  DEFINED. 

Any  written  contract  or  instrument  purporting  to  show  the 

216 


Tit.II.ch.VII.]  FUllTHER   POWERS.  §§  453w,  453x 

title  to  real  property,  or  furnish  information  relative  there- 
to, which  shall  in  express  terms  purport  to  insure  or  guar- 
antee such  title  or  the  correctness  of  such  information,  shall 
be  deemed  a  policy  of  title  insurance. 

Hisloo':  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
491.      In  effect  August   10,    1913. 

§453w.  FURTHER  POWERS  OF  TITLE  INSURANCE 
COMPANIES.  Every  title  insurance  company  organized 
under  the  lav/s  of  this  state  shall  also  have  power  to  guar- 
antee or  insure  the  identity,  due  execution,  and  validity  of 
any  note  or  bond  secured  by  mortgage  or  trust  deed,  and 
the  identity,  due  execution  and  validity  and  recording  of  any 
such  mortgage  or  trust  deed,  and  the  identity,  due  execution 
and  validity  of  bonds,  notes  or  other  evidence  of  indebted- 
ness issued  by  this  state,  or  by  any  county,  city  and  county, 
city,  school  district,  irrigation  district  or  other  municipality 
or  district  therein,  or  by  any  private  or  public  corporation, 
and  to  act  as  registrar  or  transfer  agent  of  this  state,  or 
of  any  county,  city  and  county,  city,  school  district,  irriga- 
tion district",  or  other  municipality  or  district  therein,  or  of 
any  private  or  public  corporation,  and  to  transfer  or  counter- 
sign any  such  bonds,  notes  or  other  evidence  of  indebtedness 
and  to  transfer  or  coimtersign  certificates  of  stock  of  any 
private  or  public  corporation. 

Hislorj  :  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
491.      Ill  effect  August   10,    1913. 

§  453x.  COMBINED  TITLE  INSURANCE  AND  TRUST 
COMPANY.  Any  title  insurance  corporation  incorporated 
under  the  general  incorporation  laws  of  this  state,  author- 
ized by  its  articles  of  incorporation  to  act  as  executor,  ad- 
ministrator, guardian,  assignee,  receiver,  depository,  agent 
or  trustee,  or  to  do  a  general  trust  business,  and  having  a 
capital  of  not  less  than  three  hundred  thousand  dollars 
actually   paid   in,    in    cash,   may   also    do   busmess   as   a   trust 

217 


§453x  CIVIL-   CODE.  [Div.I.Pt.IV. 

company,  and  maintain  a  trust  department  as  well  as  a  title 
insurance  department,  on  compliance  with  the  following  con- 
ditions: 

1.  [Consent  of  superintendent  of  banks,  and  of  insurance 
commissioner.]  When  such  title  insurance  company  desires 
to  do  such  a  departmental  business,  it  shall  first  obtain  the 
consent  of  both  the  superintendent  of  banks  and  of  the  in- 
surance commissioner,  and  in  its  application  for  such  con- 
sent, must  file  a  statement  making  a  segregation  of  its 
capital  and  surplus  for  each  such  department.  At  least  two 
hundred  thousand  dollars  of  its  capital  must  be  apportioned 
by  such  statement  to  its  trust  department.  The  respective 
portions  of  such  capital  and  surplus,  when  such  apportion- 
ment has  been  approved  by  the  superintendent  of  banks  and 
by  the  insurance  commissioner,  shall  be  considered  and 
treated  as  the  separate  capital  and  surplus  of  each  such  de- 
partment respectively,  as  if  each  such  department  was  a 
separate  business. 

2.  LTitle  department  subject  to  insurance  laws.]  Such 
company,  as  to  its  title  insurance  department,  shall  be  sub- 
ject to  and  shall  comply  with  all  the  requirements  of  the 
insurance  laws  and  the  rules  and  regulations  of  the  insur- 
ance department  of  this  state,  and  may  invest  its  capital  ap- 
portioned to  its  title  insurance  department,  and  the  accumula- 
tions therefrom,  in  the  securities  in  which  the  capital  and 
accumulations  of  insurance  companies  are  allowed  by  the 
laws  of  this  state  to  be  invested,  including  the  materials 
and  plant  necessary  to  enable  it  to  engage  in  the  title  in- 
surance business,  as  provided  in  this  chapter. 

3.  [Trust  department  subject  to  banking  laws.]  Such 
company,  as  to  its  trust  department,  shall  be  subject  to  and 
shall  comply  with  all  the  requirements  of  the  banking  laws 
and  the  rules  and  regulations  of  the  state  banking  department 
of  this  state,  and  may  invest  its  capital  apportioned  to  its 
trust    department,    and    the     accumulations     therefrom,     and 

218 


Tit.]  I, ch.VII.]  CERTIFICATE    FOR    BUSINESS.        §§  453y,  453z 

trust  funds  received  by  it,  in  accordance  with  the  laws  of 
this  state  relative  to  the  investment  of  funds  of  trust  com- 
panies. 

Historj-:      Enacted    June    6,    1913,    Stats,    and    Amdts.    1913,    p. 

492.  In  eft'ect   August   10,   1913. 

§  453y.  MUST  HAVE  CERTIFICATE  OF  INSURANCE 
COMMISSIONER      BEFORE     ISSUING      POLICY.     No 

corporation  shall  make  any  contract  or  issue  any  policy  of 
guarantee  or  insurance  affecting  titles  to  real  estate,  or 
engage  in  the  business  of  a  title  insurance  company,  until 
it  has  obtained  from  the  insurance  commissioner  his  cer- 
tificate that  such  company  has  complied  with  the  provisions 
of  this  chapter  and  is  duly  authorized  to  do  business  as 
such  title  insurance   company. 

History:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
492;  amended  June  7,  1915,  Stats,  and  Amdts.  1915,  p.  1266.  lo 
effect  August  8,   1915. 

§453z.  LOANS  TO  DIRECTORS,  OFFICERS  AND 
EMPLOYEES  [PROHIBITED].  No  loan  shall  be  made 
bj-  any  title  insurance  company,  directly  or  indirectly,  to 
any  of  its  officers  or  directors  or  employees  or  to  any 
member  of  the  family  of  any  ofificer  or  director. 

[Penalty].  Any  officer,  director,  agent  or  employee  of  any 
such  company  who  knowingly  consents  to  any  violation 
of  the  terms  or  provisions  of  this  section  shall  be  guilty  of 
a  misdemeanor. 

History:      Enacted    June    6,    1913,    Stats,    and    Amdts.    1913,    p. 

493.  In   effect  August  10,   1913. 


219 


§4S3aa  CIVIL  CODE.  [Div.I.Pt.lV. 


[This  is  a  new  cliapter  added  to  Title  II  of  Part  IV  of  Divi- 
sion One  of  the  Civil  Code  by  Act  approved  June  6,  1913  (Stats, 
and  Amdts.  1913,  p.  479;  amended  by  Act  approved  June  15, 
1915)    (Stats,  and  Amdts.  1915,  p.  1538)   to  read  as  follovs^s:] 

CHAPTER   VIII. 
MORTGAGE    INSURANCE. 

§  453aa.  Mortgage  insurance  companies  subject  to  insurance 
laws   and   the  authority  of  insurance   commissioner. 

§  4o3bb.  Mortgage  insurance  company  defined.  The  term  "se- 
curity" as  used  in  this  chapter  defined.  Policy  of 
mortgage  insurance  defined.  Mortgage  participa- 
tion certificate  defined.  Entire  mortgage  guaranty 
defined. 

§  453cc.  Requisite  capital  stock  of  mortgage  insurance  com- 
pany; certificate  of  authority  required.  Kind  and 
amount  of  securities  that  may  be  guaranteed.  Poli- 
cies of  mortgage  insurance  do  not  constitute 
"debts"  or  "indebtedness"  of  issuing  company.  Can 
not  invest  in,  hold  or  own  capital  stock  of  another 
corporation,    except  as  provided  herein. 

§  453dd.  Must  accumulate  a  surplus.  Restriction  on  making 
of   dividends. 

§  4'53ee.     Investments   permitted. 

§  458ff.  Mortgage  participation  certificates  and  guaranteed  se- 
curities made  legal  investments  for  trust  funds,  in- 
surance companies  and  others. 

§  453gg.     Quarterly    reports    to    insurance    commissioner. 

[§453hh.  Quarterly  report  to  insurance  commissioner],  [Re- 
pealed   by    omission    and    incorporation]. 

§  453aa.  MORTGAGE  I'NfSURANCE  COMPANIES  SUB- 
JECT TO  INSURANCE  LAWS  AND  THE  AUTHORITY 
OF  INSURANCE  COMMISSIONER.  Every  mortgage  in- 
surance company  shall  be  subject  to  and  shall  comply  with 
all  the  requirements  of  the  laws  of  this  state  made  ap- 
Dlicable  to  insurance  companies  generally  and  the  rules  and 
regulations  or  the  insurance  department  of  this  state,  ex- 
cepting in  so  far  as  said  laws,  rules  or  regulations  may  be 
inconsistent   with    the   other   provisions    in    this   chapter   con- 

220 


Tit.II.ch.VIII.]        MORTGAGE   INSURANCE/  §§  453bb 

tained;  and  the  insurance  commissioner  shall  have  the  same 
power  and  authority  over  such  company  that  he  may  exer- 
cise in  relation  to  other  insurance  companies,  including  the 
right  to  examine  and  inspect  the  financial  condition  and 
affairs  of  such  company  relating  to  the  business  of  such 
company,  and  to  compel  compliance  with  the  provisions  of 
law  governing  any  such   company. 

History:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
479;  amended  June  15,  1915,  Stats,  and  Amdts.  1915.  p.  1539. 
lu  effect  August  11,  1915. 

§453bb.  MORTGAGE  INSURANCE  COMPANY  DE- 
FINED. THE  TERM  "SECURITY"  AS  USED  IN  THIS 
CHAPTER  DEFINED.  POLICY  OF  MORTGAGE  IN- 
SURANCE DEFINED.  MORTGAGE  PARTICIPATION 
CERTIFICATE  DEFINED.  ENTIRE  MORTGAGE  GUAR- 
ANTEE DEFINED.  The  term  "mortgage  insurance  com- 
pany" shall  include  every  association,  corporation,  firm  or 
person  who  shall  engage  as  a  business  in  making  and  issuing 
policies  of  mortgage  insurance. 

The  term  "security"  wherever  used  in  this  chapter,  without 
a  different  meaning  being  specified  or  made  apparent,  shall 
be  construed  to  refer  to  and  include  within  its  meaning  a 
note  or  notes,  or  bond  or  bonds,  together  with  the  mort- 
gage or  deed  of  trust  securing  the  same  which  evidence  a 
debt  secured  by  a  first  lien  on  a  marketable  title  in  fee  to 
real  estate,  or  to  real  estate  with  improvements  thereon. 

Any  contract  made  and  issued  by  a  mortgage  insurance 
company  which  purports  to  guarantee  or  insure  against  loss 
on,  or  to  guarantee  the  payment  of,  within  a  specified  time, 
the  whole,  or  any  part,  of  the  principal,  interest  or  other 
sums  agreed  to  be  paid  under  the  terms  of  any  security,  or 
other  sums  secured  under  the  terms  of  any  security,  shall 
be  deemed,  and  is  hereby  designated,  a  "policy  of  mortgage 
msurance." 

A  policy  of  mortgage  insurance  which  evidences  the  owner- 
ship by  the   insured   of  an   undivided   or   other  partial   share 

221 


§453cc  CIVIL  CODE.  [Div.I,Pt.IV. 

or  interest,  or  the  right  to  participate  to  a  specified  extent, 
in  a  security,  or  in  a  group  consisting  of  several  securities, 
and  purports  to  guarantee  the,  payment  of  such  securities, 
or  the  payment  of  such  undivided  or  other  partial  share  or 
interest  therein,  or  the  amount  of  such  participation,  may 
be  referred  to  as,  and  is  hereby  designated,  a  "mortgage  par- 
ticipation certificate." 

A  policy  of  mortgage  insurance,  other  than  a  mortgage 
participation  certificate,  which  covers  and  refers  to  the  en- 
tire indebtedness  evidenced  by  a  security,  may  be  referred 
to  as,  and  is  hereby  designated,  an  "entire  mortgage  guar- 
anty." 

History:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
479;  amended  June  15,  1915,  Stats,  and  Amdts.  1915,  p.  1539. 
In  effect  August  11,  1915. 

§453cc.  REQUISITE  CAPITAL  STOCK  OF  MORT- 
GAGE INSURANCE  COMPANY;  CERTIFICATE  OF 
AUTHORITY  REQUIRED.  KIND  AND  AMOUNT  OF 
SECURITY  THAT  MAY  BE  GUARANTEED.  POLICIES 
OF  MORTGAGE  INSURANCE  DO  NOT  CONSTITUTE 
"DEBTS"  OR  "INDEBTEDNESS"  OF  INSURING  COM- 
PANY. CANNOT  INVEST  IN,  HOLD  OR  OWN  CAP- 
ITAL STOCK  OF  ANOTHER  CORPORATION,  EXCEPT 
AS  PROVIDED  HEREIN.  No  mortgage  insurance  com- 
pany shall  engage  in  business,  or  issue  any  policy  of  mort- 
gage insurance,  within  this  state  without  having  at  least  two 
hundred  and  fifty  thousand  dollars  in  capital  stock  fully 
paid  in,  in  cash;  nor  until  after  having  obtained  from  the 
insurance  commissioner  his  certificate  that  sucli  company 
has  complied  with  the  laws  of  this  state  applicable  thereto 
and  is  duly  authorized  to  do  btisiness  as  a  mortgage  insur- 
ance company. 

[First  lien  security.]  No  mortgage  insurance  company 
shall  guarantee  the  payment  of  any  security  except  the  same 
be  a  first  lien  upon  a  marketable  title  in  fee  to  the  property 
covered    thereby.      No    mortgage    insurance     company     shall 

222 


Tit. II, ch. VIII.]       NOT  TO  HOLD  OTHER  STOCK.  §  453cc 

issue  any  policy  of  mortgage  insurance  guaranteeing  the 
payment  of  any  portion  of  any  security  exceeding  fiftj'  per 
centum  of  the  market  value  of  the  real  estate  with  im- 
provements covered  by  the  same.  No  mortgage  insurance 
company  shall  have  at  any  time  outstanding  policies  of 
mortgage  insurance  guaranteeing  the  payment  of  securities 
the  aggregate  amount  of  the  unpaid  principal  of  which  ex- 
ceeds twenty  times  the  amount  of  its  paid  up  capital.  The 
making  and  issuing  of  policies  of  mortgage  insurance  under 
this  act  by  mortgage  insurance  companies  must  not  be 
construed  to  be  the  creation  of  debt  within  the  meaning 
of  the  phrase  "create  any  debts"  in  section  three  hundred 
nine  of  the  Civil  Code,  nor  of  indebtedness  within  the  mean- 
ing of  the  phrase  "such  capital  stock  can  not  be  diminished 
to  an  amount  less  than  the  indebtedness  of  the  corporation" 
in  section  three  hundred  fifty-nine  of  the  Civil  Code,  except 
that  no  mortgage  insurance  company  shall  reduce  its  capital 
stock  to  an  amount  less  than  is  required  by  this  act  to  be 
maintained  by  such  mortgage  insurance  company,  or  less  than 
the  indebtedness  of  such  mortgage  insurance  company  other 
than  such  policies  of  mortgage  insurance. 

[Not  to  hold  stock  of  other  company.]  No  mortgage  in- 
surance company  shall  invest  in,  hold  or  own  any  of  the 
capital  stock  of  any  other  corporation,  or  make  any  loan, 
in  whole  or  in  part,  on  the  security  of  capital  stock  of  any 
other  corporation;  provided,  that  a  mortgage  insurance  com- 
pany make  take  in  its  own  name  as  pledgee,  in  connection 
with  any  loan  conforming  to  the  provisions  of  sudivision  five 
of  section  four  hundred  fifty-three  ee,  stock  in  a  water  or 
power  corporation  in  cases  where  such  stock  represents  the 
right  to  receive  or  obtain  water  or  power  for  the  irrigation 
or  cultivation,  or  other  beneficial  use  thereon,  of  the  real 
estate  covered  by  the  loan,  whether  such  right  be  appurte- 
nant thereto  or  otherwise;  and  if  such  loan  be  used  as  a 
part  of  a  security  or  of  a  group  of  securities  taken  as  the 
basis  for  the  issue  of  mortgage  participation  certificates,  may 

223 


§453dd  CIVIL  CODE.  [Div.I.Pt.IV. 

assign  such  stock  to  a  trust  company  as  a  part  of  the  security 
or  securities  required  to  be  assigned  by  the  terms  of  sec- 
tion four  hundred  fifty-three  ff.  Said  company  may  also 
liold,  use,  transfer  or  dispose  of  any  such  stock  for  the 
benefit  and  protection  of  such  loans. 

[No  loan  to  officers.]  No  loan  shall  be  made  by  any 
mortgage  insurance  company'  directly  or  indirectly  to  any 
of  its   officers  or  directors. 

[Penalty.]  A  violation  of  any  of  the  terms  or  provisions 
of  this  section  shall  not  make  any  security  or  any  policy  of 
such  company  void  or  voidable,  but  any  officer,  director, 
agent  or  other  emploj'ee  of  any  mortgage  insurance  com- 
pany who  know^ingly  consents  to  any  violation  of  any  of 
the  terms  or  provisions  of  this  section  shall  be  guilty  of  a 
misdemeanor. 

History:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
479;  amended  June  15,  1915,  Stats,  and  Amdts.  1915,  p.  1539. 
In  effect  August  11,  1915. 

§453dd.— MUST  ACCUMULATE  A  SURPLUS.  RE- 
STRICTION ON  MAKING  DIVIDENDS.  Every  mort- 
gage insurance  company  shall  annually  set  apart  a  sum  equal 
to  ten  per  centum  of  its  net  earnings  collected  during  the 
year,  which  sums  shall  be  allowed  to  accumulate  until  a 
fund  shall  have  been  created  equal  in  amount  to  twenty-five 
per  centum  of  the  paid  up  capital  stock  of  such  company. 
Such  fund  shall  be  maintained  as  a  further  security  to  the 
holders  of  policies  of  mortgage  insurance  issued  by  such 
company,  and  shall  be  known  as  the  "surplus;"  and  if  at 
any  time  such  surplus  shall  be  impaired  by  reason  of  a  loss, 
the  amount  by  which  it  may  be  impaired  shall  be  restored 
in  the  manner  hereinabove  provided  for  its  accumulation. 
All  additions  to  said  surplus,  whether  made  in  fulfillment 
of  the  requirements  of  this  section  or  voluntarily  by  the 
company,  shall  be  and  remain  subject  to  the  provisions  of 
this  law. 

224 


Tit.II.ch.VIII.]   INVESTMENTS  PERMITTED.  §  453ee 

[Dividends.]  Such  company  must  not  make  any  dividends 
except  from  profits  remaining  on  hand  after  retaining  un- 
impaired: 

1.  The   entire   capital   stock. 

2.  The  amount  set  apart  as  a  surphis  under  the  provisions 
of  this  section. 

3.  A  sum  sufficient  to  pay  all  liabilities  for  expenses  and 
taxes,  and  all  losses  reported  or  in  course  of  settlement,  with- 
out impairment  of  said  surplus. 

History:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
479;  amended  June  15,  1915,  Stats,  and  Amdts.  1915,  p.  1540. 
lu  effect  Augu.st  11,  1915. 

i 

§453ee.  INVESTMENTS  PERMITTED.  A  mortgage 
insurance  company  may  invest  its  capital,  surplus,  and  ac- 
cumulations in  the  purchase  of,  or  loans  upon,  any  of  the 
obligations  specified  in  subdivisions  one  to  six  inclusive  of 
this  section: 

1.  Bonds  or  interest-bearing  notes  or  obligations  of  the 
United  States  or  those  for  which  the  faith  and  credit  of  the 
United  States  are  pledged  for  the  payment  of  principal  and 
interest. 

2.  Bonds  of  this  state  or  those  for  which  the  faith  and 
credit  of  the  State  of  California  are  pledged  for  the  pay- 
ment of  principal  and  interest  and  bonds  of  any  other  state 
in  the  United  States  that  has  not,  within  five  years  next 
preceding  such  investment  by  such  insurance  company,  de- 
faulted in  payment  of  any  part  of  either  principal  or  interest 
due  upon  any  legally  authorized  bond  issue. 

3.  Bonds  or  interest-bearing  notes  or  obligations  issued 
under  authority  of  law  by  any  county,  municipality  or  school 
district  in  this  state  or  in  any  other  state  or  territory  of  the 
United  States;  provided,  that  said  county,  municipality  or 
school  district  or  the  state  or  territory  in  which  it  is  located 
has  not,  within  five  years  next  preceding  such  investment  by 

s  225 


§453ce  CIVIL  CODE.  [Div.T.rt.IV. 

such  insurance  company,  defaulted  in  payment  of  any  part  of 
either  principal  or  interest  due  upon  any  legally  authorized 
bond  issue. 

4.  Bonds  of  a  permanent  road   division  in  this  state,   and 

any  irrigation  district  bonds  which  the  law  may  now  or 
hereafter  authorize  as  legal  investments  for  insurance  com- 
panies; provided,  that  the  total  amount  of  bonds  issued  by  any 
such  irrigation  district  does  not  exceed  sixty  per  centum  of 
the  aggregate  market  value  of  the  lands  within  such  district, 
and  of  the  water,  water  rights,  canals,  reservoirs,  reservoir 
sites  and  irrigation  works  owned  or  to  be  acquired  or  con- 
structed with  the  proceeds  of  any  such  bonds,  by  said  dis- 
trict, such  facts  in  reference  to  bonds  of  irrigation  dis- 
tricts to  be  determined  by  a  commission  now  or  hereafter 
authorized   l)y   law   to   ascertain   and   report   upon   such   facts. 

5.  Notes  or  bonds  secured  by  first  mortgage  or  deed  of 
trust  or  other  first  lien  upon  real  estate,  improved  or  un- 
improved; provided,  that  the  principal  so  lent  or  the  entire 
note  or  bond  issue  so  secured  shall  not  exceed  fifty  per 
centum  of  the  market  value  of  such  real  estate,  or  of  such 
real  estate  with  improvements,  provided,  also,  in  case  said 
loan  is  made,  or  said  note  or  bond  issue  created  as  or  for  a 
building  loan  on  real  estate,  that  at  no  time  shall  the  prin- 
cipal so  lent  or  the  entire  outstanding  note  or  bond  issue 
exceed  fifty  per  centum  of  the  market  value  of  the  real 
estate  and  the  actual  cost  of  the  improvements  thereon. 

6.  Securities  guaranteed  by  a  mortgage  insurance  company 

operating  under  the  laws  of  the  State  of  California,  also 
mortgage  participation  certificates  issued  by  any  such  com- 
pany in  accordance  with  the  provisions  of  this  chapter, 
including  securities  guaranteed  and  mortgage  participation 
certificates   issued  by   the   investing  company. 

History:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
4S0;  amended  June  12,  1915,  Stats,  and  Amdts.  1915,  p.  1541. 
Ill  effect  August  11,  1915.  * 

226 


Tit. II, ch. VI]  I.]      PARTICIPATION  CERTIFICATE.  §  453ff 

§  453ff.  MORTGAGE  PARTICIPATION  CERTIFICATE 
AND  GUARANTEED  SECURITIES  MADE  LEGAL  IN- 
VESTMENTS FOR  TRUST  FUNDS,  INSURANCE  COM- 
PANIES AND  OTHERS.  Mortgage  participation  cer- 
tificates, also  securities  guaranteed  by  policies  of  mortgage 
insurance  issued  in  conformity  with  the  provisions  of  this 
chapter  shall  be  legal  investments  for  all  trust  funds  held 
by  any  executor,  administrator,  guardian,  trustee  or  other 
person  holding  trust  funds,  also  for  the  funds  of  insurance 
companies,  banks,  banking  institutions  and  trust  companies, 
and  shall  be  accepted  by  the  State  of  California,  its  officers 
and  officials,  as  securities  comprising  any  part  of  any  fund 
or  deposit  required  by  law  to  be  made  with  the  State  of 
California,  or  any  officer  or  official  thereof,  by  any  trvist 
company  or  insurance  company  doing  business  in  the  State 
of  California,  and  all  premiums  required  to  be  paid  accord- 
ing to  the  terms  of  any  such  mortgage  participation  cer- 
tificate, or  other  policy  of  mortgage  insurance,  may  be 
charged  to  or  paid  out  of  the  income  from  the  note  or  notes 
or  bond  or  bonds  covered  thereby; 

[Supervision  of  state  banking  department.]  Provided,  that 
the  foregoing  provisions  of  this  section,  in  so  far  as  they 
refer  to  mortgage  participation  certificates,  shall  apply  only 
to  such  mortgage  participation  certificates  as  evidence  the 
ownership  of  shares  or  interests  in,  or  participation  in, 
securities  which  shall  have  been  assigned  to  a  trust  com- 
pany organized  and  doing  business  under  the  laws  of  and 
within  this  state  and  shall  be  held  by  such  trust  company 
for  the  common  and  equal  benefit  of  the  holders  of  all 
mortgage  participation  certificates  issued  or  to  be  issued 
evidencing  the  ownersliip  of  shares  or  interests  in,  or  par- 
ticipation in,  any  particular  security  or  group  of  securities 
so  assigned  and  such  trust,  and  the  administration  thereof, 
shall  at  all  times  be  and  hereby  is  expressly  made  subject 
to  the  inspection,  supervision  and  control  of  the  superin- 
tendent   of    l)anks    as    fully    and    completely    as    if    the    same 

227 


§453ff  CIVIL  CODE.  [Div.I.Pt.IV. 

constituted  a  court  trust  under  the  provisions  of  the  bank 
act;  provided,  also,  that  each  such  mortgage  participation 
certificate  must  bear  the  certificate  of  such  trust  company 
to  the  effect  that  the  aggregate  amount  of  mortgage  par- 
ticipation certificates  then  outstanding,  including  both  the 
one  being  certified  and  all  others  based  on  the  same  securit> 
or  group  of  securities,  does  not  exceed  the  amount  of  the 
unpaid  principal  of  the  debt  or  debts  evidenced  by  such  par- 
ticular security  or  group  of  securities;  provided,  also,  that 
each  security  so  assigned  shall  be  accompanied  by  a  copy  of 
the  appraisement  and  of  the  certificate  of  the  directors  filed 
or  to  be  filed  w^ith  the  insurance  commissioner  as  required 
by  the  provisions  of  this  chapter;  provided  also,  that  a 
copy  of  each  such  appraisement  and  accompanying  certificate 
of  the  directors  shall  be  promptly,  upon  the  assignment  of 
each  such  security,  transmitted  to  the  superintendent  of 
banks,  and  that  each  such  copy  of  appraisement  so  trans- 
mitted shall  bear  an  endorsement  or  certificate  executed  by 
the  trust  company  to  which  each  such  security  is  so  assigned 
reciting  and  setting  forth  the  amount  of  the  unpaid  principal 
named  in  the  security  which  covers  the  property  described 
in   such  appraisement; 

[Proviso  as  to  securities  deposited  with  state  treasurer.] 

Provided,  also,  that  if  any  such  mortgage  participation  cer- 
tificates, or  securities  guaranteed  by  policies  of  mortgage  in- 
surance issued  in  conformity  with  the  provisions  of  this 
chapter,  are  used  as  securities  comprising  any  part  of  any 
fund  or  deposit  required  by  law  to  be  made  with  the  state 
treasurer  by  a  trust  company,  the  securities  so  guaranteed 
or  the  ownership  of,  or  participation  in,  which  is  evidenced 
by  such  participation  certificates  must  constitute  a  first  lien 
on  improved  and  productive  real  estate  in  the  State  of 
California,  such  improved  real  estate  being  worth  at  least 
double  the  amount  of  such  lien;  and  also  that  the  real  estate 
and  improvements  which  are  covered  by  the  lien  ot  any 
security  so  guaranteed  or  the  ownership  of,  or  participation 

228 


Tit. II, ch. VIII.]        SUBSTITUTION  OF  SECURITIES.  §  453ff 

in,  which  is  evidenced  by  mortgage  participation  certificates 
which  are  so  used  shall  be  reappraised  at  least  once  every 
two  years  and  in  the  manner  in  this  chapter  provided  for 
appraisements,  and  a  copy  of  each  such  reappraisement  shall 
be  filed  with  the  trust  company  to  which  such  security  shall 
have  been  assigned  and  the  original  of  each  such  reappraise- 
ment bearing  the  endorsement  or  certificate  of  such  trust 
company  as  to  the  amount  of  the  unpaid  principal  named 
in  such  security  shall  be  filed  with  the  superintendent  of 
banks;  provided,  further,  that  the  legality  or  validity  of 
entire  mortgage  guaranties  and  mortgage  participation  cer- 
tificates heretofore  issued  which  fully  conform  to  and  com- 
ply with  the  law  in  force  at  date  of  issuance  shall  not  be 
affected  or  impaired  by  the  provisions  of  this  chapter  and 
such  entire  mortgage  guaranties  and  mortgage  participation 
certificates  shall  continue  to  be  legal  investments  and  recog- 
nized for  all  purposes  to  the  extent  and  in  the  manner 
provided  by  the  law  in  force  at  date  of  such  issuance. 

[Substitution  of  securities.]  A  mortgage  insurance  com- 
pany which  issues  mortgage  participation  certificates  in  ac- 
cordance with  the  provisions  of  this  section  may  at  any 
time  and  from  time  to  time  substitute  for  any  security  or 
securities  comprising  or  constituting  a  part  or  parts  of  a 
group  of  securities,  the  ownership  of,  or  participation  in, 
which  is  evidenced  in  whole  or  in  part  by  any  such  participa- 
tion certificates,  other  securities  similarly  guaranteed  by  it 
and  withdraw  from  the  trust  company  the  security  or 
securities  for  which  such  substitution  shall  be  made;  pro- 
vided, however,  that  at  all  times  the  amount  of  the  unpaid 
principal  of  the  debts  evidenced  by  the  particular  group 
of  securities  held  by  such  trust  company  and  aflfected  by 
any  such  substitution  shall  not  be  less  than  the  aggregate 
amount  of  the  participation  certificates  theretofore  issued 
then  outstanding  and  evidencing  the  ownership  of  undivided 
or  other  partial  shares  or  interests,  or  participation,  in  such 
group    of    securities;    and    provided,    further,    that    the    right 

229 


§453gg  CIVIL  CODE.  [Div.l.Pt.lV. 

of  substitution  hereinbefore  provided  and  the  exercise  there- 
of shall  not  alter  or  affect  the  status  of  such  participation 
certificates  as  legal  investments  for  trust  funds,  insurance 
companies,  banks,  banking  institutions  and  trust  companies 
as  hereinbefore  provided,  or  as  securities  acceptable  by  the 
State  of  California,  its  officers  and  officials,  as  comprising  or 
constituting  any  fund  or  deposit,  or  any  part  thereof,  re- 
quired by  law  to  be  made  with  the  State  of  California,  or 
any  officer  or  official  thereof,  by  any  trust  company  or  in- 
surance  company   doing  business   in   the   State   of   California. 

History:  Enacted  June  6,  1913,  Stats,  and  Amdt.s.  191.3,  p. 
480;  amended  June  15,  1915,  Stats,  and  Amdts.  1915,  p.  1542. 
In  effect  August  11,  1915. 


§453gg.  QUARTERLY  REPORTS  TO  INSURANCE 
COMMISSIONER.  Every  mortgage  insurance  company 
shall  make  a  report  in  writing  to  the  insurance  commis- 
sioner, which  report  shall  be  made  quarterly,  and  shall  be 
verified  by  the  oath  of  its  president  or  vice  president,  and 
its  secretary  or  treasurer  or  of  anj'  two  of  its  principal  offi- 
cers. Such  report  shall  contain  a  statement  of  each  new 
policy  of  mortgage  insurance  issued  by  such  compan}'  since 
the  last  preceding  report,  stating  specifically  whether  such 
policy  constitutes  an  entire  mortgage  guaranty'  or  a  mortgage 
participation  certificate. 

[When     policy     constitutes     entire     mortgage     guaranty.] 

When  such  polic}^  constitutes  an  entire  mortgage  guaranty, 
such  report  shall  set  forth  separately  the  following  facts 
regarding  the  security  on  which  the  policy  is  based,  namely: 

1.  The  aggregate  amount  of  the  unpaid  principal  indebt- 
edness evidenced  by   such  security. 

2.  A  description  of  the  property  covered  liy  such  security. 

3.  Separately,  the  market  value  of  the  land  and  the  market 
value  of  the  improvements   thereon,   if  any,  as  shown   bj^  an 

230 


Tit.TI.ch.VITI.l    QUARTERLY   REPORT,   ETC.  §  453Rg 

appraisement   as   provided   for   by   the   terms    of   tliis   section, 
also  the  aggregate  value  of  such  land  and  improvements. 

4.  The  book  and  page  of  the  record  of  the  mortgage  or 
deed  of  trust  which  is  a  part  of  such  security. 

[When  policy  constitutes  mortgage  participation  certifi- 
cate.] When  such  policy  constitutes  a  mortgage  participa- 
tion certificate  such  report  shall  set  forth,  directly  or  by 
reference  to  a  previous  report,  separately  the  following  facts 
regarding  the  security  or  securities  on  which  such  participa- 
tion certificate  is  based,  namely: 

1.  The  aggregate  amount  of  unpaid  principal  indebtedness 
evidenced  and  secured  by  such  security  or  securities,  and, 
separately,  the  amount  of  the  unpaid  principal  indebtedness 
evidenced  and  secured  by  each  such   security. 

2.  A  description  of  the  property  covered  by  each  such 
security. 

3.  Separately,  the  market  value  of  the  land  and  the  market 
value  of  the  improvements  thereon,  if  any,  as  shown  by  an 
appraisement  as  provided  for  by  the  terms  of  this  section, 
also  the  aggregate  value  of  such  land  and  improvements. 

4.  The  book  and  page  of  the  record  of  each  mortgage  and 
deed  of  trust  which  is  part  of  such  security  or  securities. 

5.  The  aggregate  amount  of  participation  certificates  issued, 
outstanding  and  based  upon  the  particular  security  or  group 
of  securities  on  which  the  certificate  so  reported  is  based. 

[Appraisement  of  property.]  There  shall  be  filed  with  such 
report  an  appraisement  of  each  separate  parcel  of  property 
mentioned  in  the  report,  an  appraisement  of  which  has  not 
theretofore  been  made  and  filed  in  accordance  with  the  pro- 
visions of  this  section,  which  appraisement  shall  be  made 
by  a  person  or  corporation  approved  by  the  insurance  com- 
missioner and  by  tlic  superintendent  of  banks.  In  such  ap- 
praisement the  market  value  of  each  parcel  of  land  and  of 
the   improvements   thereon,   if  any,   also   the   aggregate   value 

231 


§4S3hh  CIVIL  CODE.  [Div.I,Pt.IV. 

of  such  parcel  of  land  and  improvements  shall  be  stated,  to- 
gether with  a  general  statement  of  the  character  of  such 
land  and  of  the  kind  and  condition  of  such  improvements, 
if  any. 

Such  appraisement  shall  be  signed  and  verified  by  such 
appraiser,  or  by  an  officer  of  the  corporation  making  such 
appraisement,  and  shall  be  accompanied  by  a  certificate  signed 
and  verified  by  at  least  three  directors  of  such  mortgage 
insurance  company  to  the  eiifect  that  in  the  opinion  of  the 
affiants  and  each  of  them  such  appraisement  is  correct,  and 
that  in  their  opinion  the  amount  thereof  does  not  exceed 
the  market  value  of  the  property,  and  that  the  principal 
amount  lent  on  the  security  of  such  property  does  not  in 
their  opinion  exceed  fifty  per  centum  of  the  market  value  of 
such  property,  also  to  the  effect  that  said  company  has  in 
its  possession  or  control  evidences  of  title  consisting  of  a 
full  abstract  of  title,  a  full  certificate  or  guaranty  of  title, 
or  a  policy  of  title  insurance,  showing  that  the  mortgage 
or  deed  of  trust  securing  such  loan  is  a  first  lien  upon  a 
marketable  title  in  fee  to  the  property  covered  thereby. 

[Penalty.]  In  case  of  the  neglect  or  failure  of  any  such 
mortgage  insurance  company  to  make  any  such  quarterly 
report  as  herein  provided,  sucii  company  shall  forfeit  to 
the  State  of  California  ten  dollars  per  day  for  every  day 
during  which  such  neglect  or  failure  continues;  provided, 
however,  that  the  insurance  commissioner  shall  have  author- 
ity to  extend  the  time  within  which  any  such  report  may  be 
filed  for  not  exceeding  a  period  of  ten   days. 

IIi.story:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p. 
4S1;  amended  June  15,  1915,  Stat.s.  and  Aniilts.  1915,  p.  1544. 
lu  eft'ect  August  11,  1915. 


232 


Tit.II.ch.VIII.]  QUARTERLY  REPORT.  §  453hh 

§  453hh.  SAME  [repealed  by  omission  and  incorpora- 
tion]. 

Note:  There  is  no  provision  in  Chapter  769  of  Statutes  of 
1915,  p.  1538,  repealing  §  453hh.  as  enacted  June  6,  1913,  Stats, 
and  Amdts.  1913,  p.  482,  other  than  that  the  title  to  the  Act 
indicates  the  intention  of  the  legislature  to  revise  all  of 
Chapter  VIII,  of  Title  II,  of  Part  IV,  of  Division  One,  relative 
to  mortgage  insurance,  and  thereby  revises  and  re-enacts  the 
sections  as  above  given,  omitting  said  §  453hh  and  all  reference 
thereto.  The  provisions  of  §  453hh  are  incorporated  in  the 
sections   given   above,  and   the   section   repealed  by  omission. 


233 


§§454,455  CIVIL  code.  [Div.I,Pt.IV. 


TITLE    III. 

RAILROAD   CORPORATIONS. 

Chapter  I.     Officers    and    Corporate    Stock.    §§  454-459. 
II.     Enumeration   of   Powers,   §§465-478. 
III.     Business,  How   Conducted,  §§479-494. 


CHAPTER   I. 

OFFICERS   AND    CORPORATE    STOCK. 

§  4.54.     Directors   to  be   elected,   when. 

§  4-55.     Additional    provisions     in     assessment    and     transfer     of 

stock. 
§  4o6.      Railroad     corporations     may     borrow     money     and     issue 

bonds,  etc.      [Interest;   limitation   of  amount.] 
§  4.t7.     To  provide  a  sinking  fund  to  pay  bonds. 
§  458.     Capital   stock   to   be   fixed. 
§459.      Certificate    of   payment   of   fixed   capital    stock. 

§454.  DIRECTORS  TO  BE  ELECTED,  WHEN.  Di- 
rectors of  railroad  corporations  may  be  elected  at  a  meet- 
ing of  the  stockholders  other  than  the  annual  meeting,  as 
a  majority  of  the  fixed  capital  stock  may  determine,  or  as 
the  by-laws  maj^  provide:  notice  thereof  to  be  given  as  pro- 
vided for  notices  of  meetings  to  adopt  by-laws  in  article  two, 
chapter  one,  title  one,  of  this  part. 

Hislory:     lOnacted  March   21,   1S72. 

§455.  ADDITIONAL  PROVISIONS  IN  ASSESSMENT 
AND  TRANSFER  OF  STOCK.  No  stock  in  any  railroad 
corporation  is  transferable  until  all  the  previous  calls  or  in- 
stalments thereon  have  been  fully  paid  in; 

[Transfer  not  valid,  except.]  Nor  is  any  such  transfer 
valid,  except  as  between  the  parties  thereto,  unless  at  least 

234 


Tit.IIT,ch.T.]   UATLROADS— BORROWING  MONEY.  §456 

twenty  per  cent  has  been  paid  thereon  and  certificates  issued 
therefor,,  and  the  transfer  approved  by  the  board  of  di- 
rectors. 

History:     Enacted  March   21,   1S72. 

§456.  RAILROAD  CORPORATIONS  MAY  BORROW 
MONEY  AND  ISSUE  BONDS,  ETC.  [INTEREST; 
LIMITATION  OF  AMOUNT].  Railroad  corporations  may 
borrow,  on  the  credit  of  the  corporation  and  under  such 
regulations  and  restrictions  as  the  lioard  of  directors  there- 
of, by  unanimous  concurrence,  may  impose,  such  sums  of 
money  as  may  be  necessary  for  constructing  and  completing 
their  railroad  with  its  equipments,  and  for  the  purchase  of 
all  necessary  rolling  stock  and  all  else  relative  thereto,  and 
may  issue  promissory  notes  therefor,  or  may  issue  and  dis- 
pose of  bonds  to  raise  moneys  necessary  to  pay  therefor, 
at  a  rate  of  interest  not  exceeding  ten  per  cent  per  annum; 
and  may  also  issue  bonds,  or  promissory  notes,  at  the  same 
rate  of  interest  in  payment  of  any  debts  or  contracts  for  con- 
structing and  completing  their  road,  with  its  equipments  and 
rolling-  stock,  and  all  else  relative  thereto,  and  for  the  pur- 
chase of  railroads  and  other  property  within  the  purpose  of 
the   corporation. 

The  amount  of  bonds,  or  promissory  notes,  issued  for  such 
purposes  must  not  exceed  in  all  the  amount  of  their  capital 
stock;  and  to  secure  the  payment  of  such  bonds,  or  notes, 
they  may  mortgage  their  corporate  property  and  franchises, 
or  may  secure  the  payments  of  such  bonds,  or  notes,  by  deed 
of  trust  of  their  corporate  property  and  franchises.  Any 
person  or  corporation  formed  under  the  laws  of  this  state, i 
or  of  any  other  state  within  the  United  States,  that  the 
directors  of  the  railroad  corporation  may,  by  unanimous 
concurrence,  select,   may  l)e   trustees   in   such   deed  of  trust. 

History:  Enacted  March  21,  1S72;  amended  April  15,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  p.  10;  March  9.  1897,  Stats,  and 
Amdts.  1897,  p.  73;  March  4,  1899,  became  a  law,  under  consti- 
tutional provision,  without  Governor's  approval,  Stats,  and 
Amdts.   1899,  p.   57. 

235 


§§457-459  CIVIL  code.  [Div.I,Pt.IV. 

§457.  TO  PROVIDE  SINKING  FUND  TO  PAY 
BONDS.  The  directors  must  provide  a  sinking  fund,  to 
be  specially  applied  to  the  redemption  of  such  bonds  on  or 
before  their  maturity,  and  may  also  confer  on  any  holder 
of  any  bond  or  note  so  issued,  for  money  borrowed  or  in 
payment  of  any  debt  or  contract  for  the  construction  and 
equipment  of  such  road,  the  right  to  convert  the  principal 
due  or  owing  thereon  into  stock  of  such  corporation,  at  any 
time  within  eight  years  from  the  date  of  such  bonds,  under 
such  regulations  as  the  directors  may  adopt. 

History:  Enacted  March  21,  1872.  This  section  is  founded 
upon  §  15  Act  May  20,  1861  (Stats.  1861,  §  15,  p.  607),  as  amended 
by    §  1   Act  May    4,    1862    (Stats.    1862,    §  1,  p.   547). 

Con.struetion  of  section  ori^nal  act. — See  McLane  vs.  Placer- 
ville   &  S.  V.  R.  Co.,  69  Cal.    606,   609,   6   Pac.   Rep.   748. 

§458.  CAPITAL  STOCK  TO  BE  FIXED.  When,  at 
any  time  after  filing  the  articles  of  incorporation,  it  is  ascer- 
tained that  the  capital  stock  therein  set  out  is  either  more 
or  less  than  actually  required  for  constructing,  equipping, 
operating,  and  maintaining  the  road,  by  a  two-third[s]  vote 
of  the  stockholders  the  capital  stock  must  be  fixed,  and  a 
certificate  thereof,  and  of  the  proceedings  had  to  fix  the 
same,  must  be  made  out  and  filed  in  the  ofifice  of  the  secre- 
tary of  state. 

History:     Enacted  March  21,  1872. 

§459.  CERTIFICATE  OF  PAYMENT  OF  FIXED 
CAPITAL  STOCK.  Within  thirty  days  after  the  payment 
of  the  last  instalment  of  the  fixed  capital  stock  of  any  rail- 
,road  corporation  organized  under  this  title  and  part,  the 
president  and  secretary  and  a  majority  of  the  directors  there- 
of must  make,  subscribe,  and  file  in  the  office  of  the  secre- 
tary of  state  a  certificate,  stating  the  amount  of  the  fixed 
capital  stock,  and  that  the  whole  thereof  has  been  paid  in. 
The  certificate  must  be  verified  by  the  affidavit  of  the  presi- 
dent and  secretary. 

History:     Enacted  March  21,   1872. 

236 


Tit.III,ch.II.]  POWERS  OF  RAILROADS.  §465 


CHAPTER  II. 

ENUMERATION    OF    POWERS. 

§  465.     Powers  of  railroad  corporations. 

§465a.  Wliat  motive  power  may  be  used.  Authority  must  be 
obtained. 

§  466.     Map  and  profile  to  be  filed. 

§  467.     May  change   line   of   road. 

§  468.     Forfeiture   of  franchise.      [Failure   to  operate,    reverter.] 

§  469.     Crossings  and   intersections.     Condemnation. 

§  470.  Not  to  use  streets,  alleys,  or  water,  in  cities  or  towns, 
except  by  a  two-third[s]  vote  of  the  city  or  town  au- 
thorities. 

§  471.     Conveyance   of  passengers  within   city   limits    [repealed]. 

§  472.  When  crossing  railroads  or  highways,  how  other  lands 
acquired. 

§  473.  Consolidation  of  railroad  corporations.  Proceedings  ne- 
cessary thereto. 

§  473a.  Right   to   have   or  ,use   another   road    in   common. 

§  474.     State  lands  granted  for  use  of  corporations. 

§  475.     Grant   not   to   embrace  town   lots. 

§  476.     Wood,  stone,   and   earth   may  be  taken   from   state   lands. 

§  477.     Lands  to  revert  to  state,  when.  , 

§  478.     Selections   made,  how   proved   and   certified   to. 

§465.     POWERS    OF    RAILROAD    CORPORATIONS. 

Every  railroad  corporation  has  power: 

1.  [To  make  survey  for  road.]  To  cause  such  examina- 
tion and  surveys  to  be  made  as  may  be  necessary  to  the 
selection  of  the  most  advantageous  route  for  the  railroad; 
and  for  such  purposes  their  ofificers,  agents  and  employees 
may  enter  upon  the  lands  or  waters  of  any  person,  subject 
to  liability  for  all  damages  which  they  may  do  thereto; 

2.  [To  accept  real  estate.]  To  receive,  hold,  take,  and 
convey,  by  deed  or  otherwise,  as  a  natural  person,  such  vol- 
untary grants  and  donations  of  real  estate  and  other  prop- 
erty, which  may  be  made  to  it  to  aid  and  encourage  the 
construction,  maintenance  and  accommodation  of  such  rail- 
road. 

237 


§465  CIVIL  CODE.  [Div.T.Pt.TV. 

3.  [To  acquire  real  estate.]  To  purchase,  or  by  voluntary 
grants  or  donations  to  receive,  enter,  take  possession  of, 
hold  and  use  all  such  real  estate  and  other  property  as  rhay 
be  absolutely  necessary  for  the  construction  and  maintenance 
of  such  railroads,  and  for  all  stations,  depots  and  other  pur- 
poses necessary  to  successfully  work  and  conduct  the  busi- 
ness of  the  road; 

4.  To  lay  out  its  road,  not  exceeding  ten  rods  wide,  and 
to  construct  and  maintain  the  same,  with  one  or  more  tracks, 
and  with  such  appendages  and  adjuncts  as  may  be  necessary 
for  the  convenient  use  of  the  same; 

5.  To  construct  their  roads  across,  along  or  upon  any 
stream  of  water,  watercourse,  roadstead,  bay,  navigable 
stream,  street,  avenue  or  highway,  or  across  any  railway, 
canal,  ditch  or  flume  which  the  route  of  its  road  intersects, 
crosses  or  runs  along,  in  such  manner  as  to  afford  security 
for  life  and  property;  but  the  corporation  shall  restore 
the  stream  or  watercourse,  road,  street,  avenue,  highway, 
railroad,  canal,  ditch  or  flume  thus  intersected  to  its  former 
state  of  usefulness  as  near  as  may  be,  or  so  that  the  railroad 
shall  not  unnecessarily  impair  its  usefulness  or  injure  its 
franchise; 

6.  To  cross,  intersect,  join,  or  unite  its  railroad  with  any 
other  railroad,  either  before  or  after  construction,  at  any 
point  upon  its  route,  and  upon  the  grounds  of  such  other 
railroad  corporation,  with  the  necessary  turnouts,  sidings 
and  switches,  and  other  conveniences  in  furtherance  of  the 
objects  of  its  connections;  and  every  corporation  whose 
railroad  is,  or  shall  be  hereafter  intersected  by  any  new 
railroad^  shall  unite  with  the  owners  of  such  new  railroad 
in  forming  such  intersections  and  connections,  and  grant 
facilities  therefor;  and  if  the  two  corporations  cannot  agree 
upon  the  amount  of  compensation  to  be  made  therefor,  or 
the  points  or  the  manner  of  such  crossings,  intersections  and 
connections,  the  same  shall  be  ascertained  and  determined 
as  is  provided  in  title  seven,  part  three,  Code  of  Civil  Pro- 
cedure   (sees.   1237-1263); 

238 


Tit.III.ch.II.]  POWERS   OF  RAILROADS.  §465 

7.  To  purchase  lands,  timber,  stone,  gravel  or  other 
materials  to  be  used  in  the  construction  and  maintenance 
of  its  road,  and  all  necessary  appendages  and  adjuncts,  or 
acquire  them  in  the  manner  provided  in  title  seven,  part 
three,  Code  of  Civil  Procedure,  for  the  condemnation  of 
lands;  and  to  change  the  line  of  its  road,  in  whole  or  in 
part,  whenever  a  majority  of  the  directors  so  determine, 
as  is  provided  hereinafter;  but  no  such  change  must  vary 
the  general  route  of  such  road,  as  contemplated  in  its  articles 

if   incorporation; 

8.  To  carry  persons  and  property  on  their  railroad,  and  to 
receive   tolls   or   compensation   therefor; 

9.  To  erect  and  maintain  all  necessary  and  convenient 
buildings,  stations,  depots,  fixtures  and  machinery  for  the 
accommodation  and  use  of  their  passengers,  freight  and 
business; 

10.  To  regulate  the  time  and  manner  in  which  passengers 
and  property  shall  be  transported,  and  the  tolls  and  com- 
pensation to  be  paid  therefor  within  the  limits  prescribed 
by  law  and  subject  to  alteration,  change  or  amendment  by 
the  legislature  at  any  time; 

11.  To  regulate  the  force  and  speed  of  their  locomotives, 
cars,  trains  or  other  machinery  used  and  employed  on  their 
roads,  and  to  establish,  execute  and  enforce  all  needful  and 
proper  rules  and  regulations  for  the  management  of  its  busi- 
ness transactions  usual  and  proper  for  raiload   corporations; 

12.  [To  purchase  other  roads.]  To  purchase,  lease  or  ac- 
quire the  franchises,  rights  and  property,  or  any  part  there- 
I'f,  of  any  railroad  corporation,  leasing  or  owning  any  rail- 
road outside  of  the  state  of  California,  and  to  operate  the 
same,  and  to  use  the  franchises  of  any  such  road,  and  to 
build  and  operate  extensions  thereof; 

[Restrictions.]  Provided  that  nothing  herein  shall  author- 
ize any  corporation  to  purchase  the  franchises,  rights,  and 
property  of  any  railroad  operated  in  competition  with  it; 
and  to  purchase,  acquire  and  hold  the  stocks,  bonds  or  other 

239 


§§  465a,  466  CIVIL  CODE.  [Div.I,Pt.IV. 

securities  of  any  railroad  corporation  organized  under  the 
laws  of  this  state  or  of  any  other  state  or  territory,  with 
full  power  to  sell  the  same;  provided  that  nothing  herein 
will  authorize  any  corporation  to  purchase  the  stock  of  any 
railroad  corporation  operated  in  competition  with  it. 

History:  Enacted  March  21,  1872,  founded  upon  and  is  a 
substantial  re-enactment  of  §  17  of  Act  May  20,  1861,  Stats.  1861, 
pp.  614-616;  amended  by  Code  Commission,  Act  March  16.  1901, 
Stats,  and  Amdts.  1900-1,  p.  367,  held  unconstitutional,  see  his- 
tory, §  69  ante;  amendment  re-enacted  and  paragraph  12  added, 
March  20,  1903,  Stats,  and  Amdts.  1903,  pp.  245,  246;  amended 
March  4,  1907,  Stats,  and  Amdts.  1907,  p.  99,  Kerr's  Stats,  and 
Amdts.    1906-7,   p.    413.      In    efleet    immediately. 

§465a.  WHAT  MOTIVE  POWER  MAY  BE  USED. 
AUTHORITY  MUST  BE  OBTAINED.  Every  person  or 
corporation  now  or  hereafter  authorized  to  operate  a  railroad 
by  steam  motive  power,  is  also  authorized  to  use  electricity 
'  compressed  air,  or  both,  either  with  or  without  such 
steam,  for  the  purpose  of  propelling  cars  or  trains  on  such 
railroad  or  upon  any  portion  thereof.  In  incorporated  cities, 
towns,  or  cities  and  counties  having  more  than  five  thousand 
inhabitants,  authority  must  be  obtained  from  the  legislative 
authority  thereof. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1.  p.  368,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.   574. 

A  codification  of  §  1  Act  March  23,  1893,  Stats,  and  Amdts. 
1893,   p.   208. 

§466.  MAP  AND  PROFILE  TO  BE  FILED.  Every 
railroad  corporation  in  this  state  must,  within  a  reasonable 
time  after  its  road  is  finally  located,  cause  to  be  made  a 
map  and  profile  thereof,  and  of  the  land  acquired  for  the 
use  thereof,  and  the  boundaries  of  the  several  counties 
through  which  the  road  may  run,  and  file  the  same   in  the 

240 


Tit.III,ch.II.]  CHANGE  OF  LINE— FORFEITURE.        §§  457^  458 

office  of  the  secretary  of  state;  and  also  like  maps  of  the 
parts  thereof  located  in  different  counties,  and  file  the  same 
in  the  office  of  the  clerk  of  the  county  in  which  such  parts 
of  the  road  are,  there  to  remain  of  record  forever. 

The  maps  and  profiles  must  be  certified  by  the  chief 
engineer,  the  acting  president  and  secretary  of  such  com- 
pany, and  copies  of  the  same,  so  certified  and  filed,  be  kept 
in  the  office  of  the  secretary  of  the  corporation,  subject  to 
examination  by  all  parties  interested. 

Hlstorj-s  Enacted  March  21,  1872,  founded  upon  §  43  Act  Maj- 
20,    1861,   Stats.   1861,  pp.    623-624. 

§467.  MAY  CHANGE  LINE  OF  ROAD.  If.  at  any 
time  after  the  location  of  the  line  of  the  railroad  and  the 
filing  of  the  maps  and  profiles  thereof,  as  provided  in  the  pre- 
ceding section,  it  appears  that  the  location  can  be  improved, 
the  directors  may,  as  provided  in  subdivision  seven,  section 
four  hundred  and  sixty-five,  alter  or  change  the  same,  and 
cause  new  maps  and  profiles  to  be  filed,  showing  such 
changes,  in  the  same  offices  where  the  originals  are  of  file, 
and  may  proceed,  in  the  same  manner  as  the  original  loca- 
tion was  acquired,  to  acquire  and  take  possession  of  such 
new  line,  and  must  sell  or  relinquish  the  lands  owned  by 
them  for  the  original  location,  within  five  years  after  such 
change. 

[How  new  location  to  be  run.]  No  new  location,  as 
herein  provided,  nuist  be  so  run  as  to  avoid  any  points 
named   in   their  articles   of  incorporation. 

History:  Enacted  March  21,  1872,  founded  upon  §  IS  Act  May 
20,   1861,   Stats.    1861,   p.    616. 

§468.  FORFEITURE  OF  FRANCHISE.  [FAILURE 
TO  OPERATE,  REVERTER.]  Every  railroad  corporation 
must,  within  two  years  after  filing  its  original  articles  of 
incorporation,  begin  the  construction  of  its  road,  and  must 
every  year  thereafter  complete  and  put  in  full   operation  at 

241 


§468  CIVIL  CODE.  [Div.I,Pt.IV. 

least  five  miles  of  its  road,  until  the  same  is  fully  completed; 
and  upon  its  failure  so  to  do,  for  the  period  of  one  year, 
its  right  to  extend  its  road  beyond  the  point  then  completed 
is   forfeited. 

[When  completed  must  be  operated — Forfeiture  of  right 
to  operate.]  After  the  completion  of  any  railroad,  or  any 
part  thereof,  capable  of  being  operated,  its  owner  must 
operate  it,  and  upon  his  failure  to  keep  it,  or  any  part  there- 
of, in  full  operation  for  the  period  of  six  months,  his  right 
to  operate  it  in  whole  or  in  part,  as  the  case  may  be,  is 
forfeited,  and  the  lands  occupied  for  the  purposes  of  the 
road,  so  far  as  the  same  is  not  operated,  revert  to  the  orig- 
inal owners  or  their  successors  in  interest.  A  ra'lroad  is 
in  full  operation  when  one  passenger  train,  or  one  mixed 
train,  is  run  over  it  once  a  day  in  each  direction  and  a  suffi- 
cient number  of  freight  trains  to  accommodate  the  traffic 
on  the  road.  If  a  railroad  is  wholly  constructed  at  an  eleva- 
tion of  five  thousand  feet  or  more  above  the  level  of  the 
sea,  its  owner  is  not  required  to  maintain  and  operate  it, 
nor  to  run  passenger  or  other  trains  thereon,  between  the 
fifteenth  of  October  of  any  year  and  the  fifteenth  of  May 
of  the  year  following. 

[Exception.]  This  section  must  not  be  construed  to  re- 
quire the  operation  of  a  road  when  prevented  by  the  act 
of  God,  nor  when  the  operation  of  the  road,  together  with 
its  branch  and  trunk  lines,  does  not  yield  income  sufificient 
to  defray  the  expenses  of  maintaining  and  operating  it  in 
connection  with  its  branch  and  trunk  lines.  The  railroad 
commissioners  have  the  power  to  examine  and  determine 
whether  a  railroad,  together  with  its  branch  and  trunk  lines, 
yields  income  sufificient  to  operate  the  same. 

History:  Enacted  March  21,  1872,  founded  upon  §  54  Act  May 
20,  1861,  Stats.  1861,  p.  626,  as  amended  Act  April  1.  1870,  Stats. 
1869-70,  p.  578;  amended  by  Code  Commission,  Act  March  21, 
1901,  Stats,  and  Amdts.  1900-1,  p.  368,  held  unconstitutional, 
see  history,  §  4  ante;  amendment  re-enacted  March  21,  1905, 
Stats,  and  Amdts.  1905,  p.  574. 

242 


Tit. ITT, ch. IT.]      CROSSINGS  AND  INTERSECTIONS.     §§469-472 

§469.  CROSSINGS  AND  INTERSECTIONS.  CON- 
DEMNATION. Whenever  the  track  of  one  railroad  inter- 
sects or  crosses  the  track  of  another  railroad,  whether  the 
same  be  a  street  railroad,  wholly  within  the  limits  of  a  city 
or  town,  or  other  railroad,  the  rails  of  either  or  each  road  must 
1)6  so  cut  and  adjusted  as  to  permit  the  passage  of  the  cars  on 
each  road  with  as  little  obstruction  as  possible;  and,  in 
case  the  persons  or  corporations  owning  the  railroads  can- 
not agree  as  to  the  compensation  to  be  made  for  cutting 
and  adjusting  the  rails,  the  condemnation  of  the  right  of 
way  over  the  one  for  the  use  of  the  other  road  may  be 
had  in  proceedings  under  title  seven,  part  three,  Code  of 
Civil  Procedure,  and  the  damages  assessed  and  the  right  of 
way  granted  as  in  other  cases. 

History:  Enacted  March  21.  1S72,  founded  upon  §  2  Act  May 
6,   1862,  Stats.   1862,  p.   498. 

§470.  NOT  TO  USESTREETS,  ALLEYS,  OR  WATER, 
IN  CITIES  OR  TOWNS,  EXCEPT  BY  A  TWO- 
THIRD[S]  VOTE  OF  THE  CITY  OR  TOWN  AUTHOR- 
ITIES. No  railroad  corporation  must  use  any  street,  alley, 
or  highway,  or  any  of  the  land  or  water,  within  any  incor- 
porated cit}'  or  town,  unless  the  right  to  so  use  the  same 
is  granted  by  a  two-third[s]  vote  of  the  town  or  city 
authority  from  which  the  right  must  emanate. 

History:     Enacted  March   21,   1ST2. 

§47L  CONVEYANCE  OF  PASSENGERS  WITHIN 
CITY  LIMITS   [repealed]. 

History:  Enacted  March  21,  1872,  founded  upon  §21  Act 
1861,  Stats.  1861,  p.  618;  amended  April  1,  1876,  Code  Amdts. 
1875-6,   p.   76;   repealed  April  1,   1878,  Code  Amdts.   1877-8,  p.    SI. 

§472.  WHEN  CROSSING  RAILROADS  OR  HIGH- 
WAYS, HOW  OTHER  LANDS  ARE  ACQUIRED.  When- 
ever  the   track   of  such   railroad   crosses   a   railroad   or   iiigh- 

243 


§§473  CIVIL   CODE.  [Div.I.Pt.IV. 

way,  such  railroad  or  highway  may  be  carried  under,  over, 
or  on  a  level  with  the  track,  as  may  be  most  expedient;  and 
in  cases  where  an  embankment  or  cutting  necessitates  a 
change  in  the  line  of  such  railroad  or  highway,  the  cor- 
poration may  take  such  additional  lands  and  material  as  are 
necessary  for  the  construction  of  such  road  or  highway  on 
such  new  line.  If  such  other  necessary  lands  cannot  be 
had  otherwise,  they  may  be  condemned  as  provided  in  title 
seven,  part  three,  Code  of  Civil  Procedure;  and  when  com- 
pensation is  made  therefor,  the  same  becomes  the  property 
of  the  corporation. 

History:  Enacted  March  21,  1S72,  founded  upon  §  19  Act  May 
20,   1861,  Stats.   1861,  pp.   616-617. 

§  473.  CONSOLIDATION  OF  RAILROAD  CORPORA- 
TION.    PROCEEDINGS  NECESSARY  THERETO.     Any 

railroad  corporation  incorporated  under  the  laws  of  this 
state  may  consolidate  with  one  or  more  railroad  corporations 
incorporated  under  the  laws  of  this  state,  or  under  the  laws 
of  any  other  state  or  territory  of  the  United- States,  its  capital 
stock,  properties,  roads,  equipments,  adjuncts,  franchises, 
claims,  demands,  contracts,  agreements,  obligations,  debts, 
liabilities  and  assets  of  every  kind  and  description,  upon 
such  terms  and  in  such  manner  as  may  be  agreed  upon  by 
their  respective  boards   or  directors;   provided, 

No  such  consolidation  shall  take  effect  until  the  same 
shall  have  been  ratified  and  confirmed  in  writing  by  stock- 
holders pi  the  respective  corporations  representing  three- 
fourths  of  the  subscribed  capital  stock  of  their  respective 
corporations.     In  case  of  such   consolidation 

"Articles  of  incorporation  and  consolidation"  must  be  pre- 
pared, setting  forth: 

1.  The  name  of  the  new  corporation; 

2.  The  purpose  for  which  it  is  formed; 

3.  The  place  where  its  principal  business  is  to  be  trans- 
acted; 

244 


Tit.III,ch.II.]     CONSOLIDATION',  PROCEEDINGS.  §473 

4.  The  term  for  which  it  is  to  exist,  which  shall  not  exceed 
fifty  years; 

5.  The  number  of  its  directors  (which  shall  not  be  less 
than  five,  nor  more  than  thirteen)  and  the  names  and  resi- 
dences of  the  persons  appointed  to  act  as  such  until  their 
successors  are  elected  and  qualified; 

6.  The  amount  of  its  capital  stock  (which  shall  not  exceed 
the  amount  actually  required  for  the  purposes  of  the  new 
corporation,  as  estimated  by  competent  engineers),  and  the 
number  of  shares  into  which'it  is  divided; 

7.  The  amount  of  stock  actually  subscribed,  and  by  whom; 

8.  The  termini  of  its  road  or  roads  and  branches; 

9.  The  estimated  length  of  its  road  or  roads  and  branches; 

10.  The  names  of  the  constituent  corporations,  and  the 
terms  and  conditions  of  consolidation  in  full. 

[Signing  articles;  method  of — Memorandum  of  ratification.] 
Said  articles  of  incorporation  and  consolidation  must  be 
signed  and  countersigned  by  the  presidents  and  secretaries 
of  the  several  constituent  corporations  and  sealed  with  their 
corporate  seals.  There  must  be  annexed  thereto  memoranda 
of  the  ratification  and  confirmation  thereof  by  the  stock- 
holders of  each  constituent  corporation,  which  must  be 
respectively  signed  by  stockholders  representing  at  least 
three-fourths  of  the  capital  stock  of  their  respective  cor- 
porations.    When  completed  as  aforesaid  said 

Articles  must  be  filed  in  the  office  of  the  county  clerk  of 
the  county  in  which  the  original  articles  of  incorporation  of 
either  of  the  consolidating  corporations  are  filed,  and  a  copy 
of  the  articles  of  incorporation  and  consolidation  certified 
by  such  county  clerk  must  be  filed  in  the  ofifice  of  the  secre- 
tary of  state,  and  thereupon  the  constituent  corporations 
named  therein  must  be  deemed  and  held  to  have  become 
extinct  in  all  courts  and  places,  and  said  new  corporation 
must  be  deemed  and  held  in  all  courts  and  places  to  have 
succeeded  to  all  their  several  capital  stocks,  properties, 
roads,    equipments,    adjuncts,    franchises,     claims,     demands, 

245 


S473a  CTVIL  CODK.  [Div.I.Pt.lV. 

contracts,  agreements,  assets,  choses  and  rights  in  action  of 
every  kind  and  description,  both  at  law  and  in  equity,  and 
to  be  entitled  to  possess,  enjoy,  and  enforce  the  same  and 
every  thereof,  as  fully  and  completely  as  either  and  every 
of  its  constituents  might  have  done  had  no  consolidation 
taken  place. 

[New  corporation  subrogated  to  constituents.]  Said  con- 
solidated or  new  corporation  must  also,  in  all  courts  and 
places,  be  deemed  and  held  to  have  become  subrogated  to 
its  several  constrtuents  and  each  thereof,  in  respect  to  all 
their  contracts  and  agreements  with  other  parties,  and  all 
their  debts,  obligations,  and  liabilities,  of  every  kind  and 
nature,  to  any  persons,  corporations,  or  bodies  politic, 
whomsoever,  or  whatsoever,  and  said  new  corporation  must 
sue  and  be  sued  in  its  own  name  in  any  and  every  case 
in  which  any  or  either  of  its  constituents  might  hav-e  sued 
or  might  have  ,been  sued  at  law  or  in  equity  had  no  such 
consolidation  been  made.  Nothing  in  this  section  contained 
shall  be  construed  to  impair  the  obligation  of  any  contract 
to  which  any  of  such  constituents  were  parties  at  the  date 
of  such  consolidation.  All  such  contracts  may  be  enforced 
by  action  or  suit,  as  the  case  may  be,  against  the  con- 
solidated corporation,  and  satisfaction  obtained  out  of  the 
property  which,  at  the  date  of  the  consolidation,  belonged 
to  the  constituent  which  was  a  party  to  the  contract  in  action 
or  suit,  as  well  as  out  of  any  other  property  belonging  to 
the   consolidated   corporation. 

History:  Enacted  March  21,  1872,  founded  upon  §  40  Act  May 
20,  1861,  Stats.  1861,  pp.  622-623;  amended  March  16,  1901,  be- 
came a  law,  under  constitutional  provision,  without  Governor's 
approval,  Stats,  and  Amdts.  1900-1,  p.  327.  In  effect  March  16, 
1901. 

§473a.  RIGHT  TO  LEASE  OR  USE  ANOTHER 
ROAD  IN  COMMON.  Railroad  corporations  doing  busi- 
ness in  this  state  and  organized  under  any  law  of  this  state 


Tit.III,ch.II.]         GRANT-OF   STATE    LANDS.  §§474.476 

or  the  United  States,  or  of  any  state  or  territory  thereof, 
have  power  to  enter  into  contracts  with  one  another,  where- 
by the  one  may  lease  of  the  other  the  whole  or  any  part  of 
its  railroad,  or  ma}'  acquire  of  the  other  the  right  to  use,  in 
common  with  it,  the  whole  or  any  part  of  its  railroad. 

Historj-:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  .369;  re-enacted  March  21,  1905, 
Stats,  and  Amdts.  1905,  p.  575. 

A  codification  of  §  2  Act  April  2,  18S0,  Stats.  1880,  p.  21. 

§474.  STATE  LANDS  GRANTED  FOR  USE  OF  COR- 
PORATIONS. There  is  granted  to  every  railroad  corpora- 
tion the  right  of  way  for  the  location,  construction,  and 
maintenance  of  their  necessary  works,  and  for  every  neces 
sary  adjunct  thereto,  over  any  swamp,  overflowed,  or  other 
public  lands  of  the  state  not  otherwise  disposed  of  or  in 
use,  not  in  any  case  exceeding  in  length  or  width  that  which 
is  necessary  for  the  construction  of  such  works  and  ad- 
juncts, or  for  the  protection  thereof,  not  in  any  case  to  ex- 
ceed two  hundred  feet  in  width. 

History:  Enacted  Marcli  21,  1872;  this  and  following-  sections 
of  chapter  founded  upon  §§  20-22  Act  May  20,  1861,  Stats.  1861, 
p.    617. 

§475.     GRANT    NOT   TO     EMBRACE    TOWN     LOTS. 

The  grants  mentioned  in  the  preceding  section  do  not  apply 
to  public  lands  of  the  state  within  the  corporate  limits  of 
towns   and   cities,   or  within   three   miles   thereof. 

His<or>  :  Enacted  March  21,  1S72;  thi.«,  the  preceding  section, 
and  following:  sections  of  chapter  founded  upon  §§  20-22  Act 
May   20.   1S01.   Stats.   Ifiea,  p.   617. 

§476.  WOOD,  STONE,  AND  EARTH  MAY  BE  TAK- 
EN FROM  STATE  LANDS.  The  right  to  take  from  any 
of  the  lands  belonging  to  the  state,  adjacent  to  the  works 
of  the   corporation,   all   materials,  such   as  wood,   stone,   and 

247 


§§477,478  CIVIL  CODE.  [Div.I.PtllV. 

earth,  naturally  appurtenant  thereto,  which  may  be  neces- 
sary and  convenient  for  the  original  construction  of  its 
works  and  adjuncts,  is  granted  to  such  corporations. 

History:  Enacted  March  21,  1872;  this  and  foHowing-  sections 
of  chapter  founded  upon  §§  20-22  Act  May  20,  1861,  Stats.  1861, 
p.   617. 

§477.     LANDS  TO    REVERT  TO    STATE,  WHEN.     If 

any  corporation  receiving  state  lands  or  appurtenances  there- 
under is  dissolved,  ceases  to  exist,  is  discontintied.  or  the 
route  or  line  of  its  works  is  so  changed  as  not  to  cover  or 
cross  the  lands  selected,  or  the  use  of  the  lands  selected  is 
abandoned,  such  selected  lands  revert,  and  the  title  thereto 
is  reinvested  in  the  state  or  its  grantees,  free  from  all  such 
uses. 

Hi.story:  Enacted  March  21,  1S72;  this  and  following  section 
of  chapter  founded  upon  §§  20-22  Act  May  20,  1861,  Stats.  1861, 
p.   617. 

§478.  SELECTIONS  MADE,  HOW  PROVED  AND 
CERTIFIED  TO.  When  any  selection  of  the  right  of  way, 
or  land  for  an  adjunct  to  the  works  of  a  railroad  corpora- 
tion, is  made  by  any  corporation,  the  secretary  thereof  must 
transmit  to  the  surveyor-general,  controller  of  state,  and 
recorder  of  the  county  in  which  the  selected  lands  are 
situate,  a  plat  of  the  lands  so  selected,  giving  the  extent 
thereof  and  uses  for  which  the  same  is  claimed  or  desired, 
duly  verified  to  be  correct;  and,  if  approved,  the  surveyor- 
general  must  so  indorse  the  plat,  and  issue  to  the  corpora- 
tion a  permit  to  use  the  same,  unless,  on  petition  properly 
presented  to  the  court,  a  review  is  had  and  such  use  pro- 
hibited. 

Hi.story:  Enacted  March  21,  1872;  this  and  preceding  four 
sections  founded  on  §  20-22  Act  May  20,  1861,  Stats.  1861,  p.  617. 


248  _J 


Tit.IIT.ch.IIL]         CONDUCT  OF  BUSINESS.  §479 


CHAPTER  III. 

BUSINESS,    HOW   CONDUCTED. 

§  479.     Checks  to  be  affixed  to  all  baggage.      [Damages.] 

§  480.     Annual    report   to    be   verified.      Form    of    report. 

§  4S1.  Duties  of  corporation.  [Time  of  running  to  be  fixed  by 
public  notice.  Sufficient  accommodations  to  be  fur- 
nished.] 

§  482.     Corporation    to   pay    damages   for   refusal. 

§  483.  Furnish  room  inside  passenger  cars,  and  be  responsible 
for   damages   occurring  on   freight  and   other  cars. 

§  484.  Corporation  to  post  printed  regulations,  and  not  re- 
sponsible  for   damages   in   violation    of   rules. 

§  485.  Maintenance  of  fences  along  railroads.  To  pay  damages. 
Not  liable  in  certain  cases.  Corporations  may  recover 
damages,  when. 

§  4S.Ta.  Right  to  private  crossing  over  railroad  tracks. 

§  486.     Regulations    of   trains.      Penalty. 

§  487.     Passenger    refusing   to   pay  fare. 

§  488.     Officers  to  wear  badge. 

§  489.  Rates  of  charges  established  by  railroad  commissioners. 
Notice  served. 

§  490.  Railroad  tickets  entitle  purchaser  to  what.  Penalty  for 
failure  to  provide  such  tickets. 

§491.     Quality  of  rail  to  be  used. 

§  492.  Elevated  or  underground  railroads.  Who  may  grant 
franchise. 

§  493.     To  what  above  section   applicable. 

§  494.  Railroad  corporations  may  sell  property  and  franchises 
to  other  railroads. 


§479.  CHECKS  TO  BE  AFFIXED  'TO  ALL  BAG- 
GAGE. [DAIVIAGES.]  A  check  must  be  affixed  to  every 
])ackage  or  parcel  of  baggage  when  taken  lor  transporta- 
tion by  any  agent  or  employee  of  such  railroad  corporation, 
and  a  duplicate  thereof  given  to  the  passenger  or  person 
delivering  the  same  in  his  behalf;  and  if  such  check  is  re- 
fused on  demand,  the  railroad  corporation  must  pay  to  such 
passenger  the  sum  of  twenty  dollars,  to  be  recovered  in  an 

249 


§480  CIVIL    CODE.  [Div.I.Pt.IV. 

action  for  damages;  and  no  fare  or  toll  must  be  collected 
or  received  from  such  passenger,  and  if  such  passenger 
has  paid  his  fare,  the  same  must  be  returned  by  the  con- 
ductor in  charge  of  the  train;  and  on  producing  the  check, 
if  his  baggage  is  not  delivered  to  him  by  the  agent  or 
employee  of  the  railroad  corporation,  he  may  recover  the 
value   thereof  from   the  corporation. 

History:     Enacted  March  21,  1S72,   founded  upon   §  42   Act  May 
20,  1861,  Stats.   ]S61,  p.   623. 


§480.  ANNUAL  REPORT  TO  BE  VERIFIED. 
FORM  OF  REPORT.  Every  railroad  corporation  must 
make  an  annual  report  to  the  secretary  of  state,  or  other 
officer  designated  by  law,  of  its  operations  for  each  year, 
ending  on  the  thirty-first  day  of  December,  verified  by  the 
oaths  of  the  president  or  acting  superintendent  of  operations, 
the  secretary  and  treasurer  of  such  corporation,  and  h\e  it 
in  the  office  of  the  secretary  of  state,  or  such  other  desig- 
nated officer,  by  the  twentieth  day  of  February,  which  must 
state: 

1.  The  capital  stock,  and  the  amount  thereof  actually  paid 
in;  ' 

2.  The  amount  expended  for  the  purchase  of  lands  for 
the  construction  of  the  road,  for  buildings,  and  for  engines 
and  cars,  respectively; 

3.  The  amount  and  nature  of  its  indebtedness,  and  the 
amount   due   the   corporation; 

4.  The  amount  received  from  the  transportation  of  passen- 
gers, property,  mails,  and  express  matter,  and  from  other 
sources; 

5.  The  amount  of  freight,   specifying  the  quantity  in  tons; 

6.  The  amount  paid  for  repairs  of  engines,  cars,  buildings, 
and  other  expenses,  in  gross,  showing  the  current  expenses 
of  running  such  road; 

250 


Tit. 1 11, ch. I II.]      DUTIES   OF  CORPORATION.  §481 

7.  The   number  and   amount   of  dividends,   and  when   paid; 

8.  The    number    of    engine-houses    and    shops,    of    engines 
and  cars,  and  their  character. 

History:     Enacted  March   21,   18  72,  founded  upon   §  41  Act  May 
20,    1861,    Stats.    1861,   p.    624. 


§481.  DUTIES  OF  CORPORATION.  [TIME  OF 
RUNNING  TO  BE  FIXED  BY  PUBLIC  NOTICE.  SUF- 
FICIENT ACCOMMODATIONS  TO   BE  FURNISHED.] 

Every  such  corporation  must  start  and  run  its  cars,  for  tlie 
transportation  of  persons  and  property,  at  such  regular  times 
afe  it  shall  fix  bj^  public  notice,  and  must  furnish  sufficient 
accommodations  for  the  transportation  of  all  such  passen- 
gers and  property  as,  within  a  reasonable  time  previous  there- 
to, offer  or  are  offered  for  transportation,  at  the  place  of 
starting,  at  the  junction  of  other  railroads,  and  at  siding  and 
stopping-places  established  for  receiving  and  discharging 
way  passengers  and  freight;  and  must  take,  transport,  and 
discharge  such  passengers  and  property  at,  from,  and  to  such 
places,  on  the  due  payment  of  tolls,  freight,  or  tare  therefor. 

Hi.story:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  .'569,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   21,   1905,   Stats,   and  Amdts.   1905,  p.   575. 

Section  founded  upon  Act  May  20,  1861,  §  45  (Stats.  1861,  p. 
625).  The  language  of  the  section  as  it  now  stands  amended 
is  almost  a  verbatim  copy  of  that  section  of  the  Act  of  186J 
which  is  construed  in  Contra  Costa  C.  M.  R.  Co.  vs.  Moss,  2o 
Cal.   323,   328. 

North  Carolina  statute  (N.  C.  Code  §  1963)  is  almost  word  for 
word  tlie  same  as  this,  section^  and  is  construed  in  Purcell  vs. 
Riclimond  &  D.  R.  Co.,  108  N.  C.  414,  12  S.  E.  Rep.  954,  12  L.  R. 
A.    113. 

Oklalioma  statute  (§  1036)  is  identical  with  this  section,  and 
is  construed  in  Chaddick  vs.  Lindsay,  5  Okla.  616,  49  Pac.  Rep. 
940. 

251 


§§482-484  CIVIL  CODE.  [Div.I.Pt.IV. 

§482.  CORPORATION  TO  PAY  DAMAGES  FOR  RE- 
FUSAL. In  case  of  refusal  by  such  corporation  or  their 
agents  so  to  take  and  transport  any  passengers  or  property, 
or  to  deliver  the  same,  at  the  regular  appointed  places,  such 
corporation  must  pay  to  the  party  aggrieved  all  damages 
which  are  sustained  thereby,  with  costs  of  suit. 

History:  Enacted  March  21,  1S72,  founded  upon  §  46  Act  May 
20,   1S61,   Stats.    1861,   p.    624. 


§483.  FURNISH  ROOM  INSIDE  PASSENGER-CARS, 
AND  BE  RESPONSIBLE  FOR  DAMAGES  OCCURRING 
ON  FREIGHT  AND  OTHER  CARS.  Every  railroad  cor- 
poration must  furnish,  on  the  inside  of  the  passenger-cars, 
sufificient  room  and  accommodations  for  all  passengers  to 
whom  tickets  are  sold  for  any  one  trip  and  for  all  persons 
presenting  tickets  entitling  them  to  travel  thereon;  and  when 
fare  is  taken  for  transporting  passengers  on  any  baggage, 
wood,  gravel,  or  freight  car,  the  same  care  must  be  taken* 
and  the  same  responsibility  is  assumed  by  the  corporation 
as  for  passengers  on  passenger-cars. 

HLstory:      Enacted  March   21,   1872,  founded  upon   §§4.5,   46  Act 
May   20,    1861,   Stats.    1861,   p.    624. 


§484.  CORPORATIONS  TO  POST  PRINTED  REG- 
ULATIONS, AND  NOT  RESPONSIBLE  FOR  DAM- 
AGES IN  VIOLATION  OF  RULES.  Every  railroad  cor- 
poration must  have  printed  and  conspicuously  posted  on  the 
inside  of  its  passenger-cars  its  rules  and  regulations  regard- 
ing fare  and  conduct  of  its  passengers;  and  in  case  any  pas- 
senger is  injured  on  or  from  the  platform  of  a  car,  or  on 
any  baggage,  wood,  gravel,  or  freight  car,  in  violation  of 
such  printed  regulations,  or  in  violation  of  positive  verbal 
instructions  or  injunctions  given  to  such  passenger  in  per- 
son by  any  officer  of  the  train,  the  corporation  is  not  respon- 

252 


Tit.III,ch.III.]     MAINTENANCE  OF  FENCES.  §§  485,  485a 

sible   for   damages   for   such  injuries,  unless  the   corporation 
failed  to  comply  with  the  provisions  of  the  preceding  section. 

History:  Enacted  March  21,  1872,  founded  upon  §  48  Act  May 
20,   1861,   Stats.    1861,   p.   625. 

§485.  MAINTENANCE  OF  FENCES  ALONG  RAIL- 
ROAD. TO  PAY  DAMAGES.  NOT  LIABLE  IN  CER- 
TAIN CASES.  CORPORATION  MAY  RECOVER  DAM- 
AGES, WHEN.  Railroad  corporations  must  make  and 
maintain  a  good  and  sufficient  fence  on  both  sides  of  their 
track  and  property.  In  case  they  do  not  make  and  maintain 
such  fence,  if  their  engine  or  cars  shall  kill  or  maim  any  cat- 
tle or  the  same  runs  through  or  upon  public  land  they  must 
pay  to  the  owner  of  such  cattle  or  other  domestic  animals 
a  fair  market  price  for  the  same,  unless  it  occurred  through 
the  neglect  or  fault  of  the  owner  of  the  animal  so  killed  or 
maimed.  Railroad  corporations  paying  to  the  owner  of  the 
land  through  or  along  w-hich  their  road  is  located  an  agreed 
price  for  making  and  maintaining  such  fence,  or  paying  the 
cost  of  such  fence  with  the  award  of  damages  allowed  for 
the  right  of  way  for  such  railroad,  are  relieved  and  exonerat- 
ed from  all  claims  for  damages  arising  out  of  the  killing  or 
maiming  any  animals  of  persons  who  thus  fail  to  construct 
and  maintain  such  fence;  and  the  owners  of  such  animals 
are  responsible  for  any  damages  or  loss  which  may  accrue 
to  such  corporation  from  such  animals  being  upon  their  rail- 
road track,  resulting  from  the  non-construction  of  such 
fence,  unless  it  is  shown  that  such  loss  or  damage  occurred 
through  the  negligence  or  fault  of  the  corporation,  its  of- 
ficers, agents,  or  employees. 

History:  Enacted  March  21,  1872,  founded  upon  §  40  Act  May 
20,  1861,  Stats.  1861,  p.  623;  amended  June  7,  1915,  Stats,  and 
Amdts.   1915.  p.    1281.      In   effeot   August  S,   1915. 

§485a.  RIGHT  TO  PRIVATE  CROSSINGS  OVER 
RAILROAD  TRACKS.  The  owner  or  owners  of  any  lands 
along  or  through  which  any  railroad  is  constructed  or  main- 

253 


§486  CIVIL  CODE.  '  [Div.l,Pt.lV. 

tained,  shall  have  the  right  to  such  farm  or  private  crossings 
over  such  railroad  and  railroad  right  of  way  as  may  be  reason- 
ably necessary  or  convenient  for  ingress  to  or  egress  from  such 
lands,  or  in  order  to  connect  such  lands  with  other  adjacent 
lands  of  such  owner  or  owners;  and  the  owner  or  operator 
of  such  railroad  shall  construct  and  at  all  times  maintain 
such  farm  or  private  crossing  in  a  good,  safe  and  passable 
condition;  provided,  that  the  railroad  commission  shall  have 
the  authority  to  determine  the  necessity  for  such  crossing 
and  the  place,  manner  and  conditions  under  which  said 
crossing  shall  be  constructed  and  maintained,  and  shall  fix 
and  assess  the  cost  and  expense  thereof. 

History:     Enactment  approved  May  29,  1915,  Stats,  and  Amdts. 
1915,   p.   920.      In   effect  August   8,    1915. 


§486.     REGULATIONS    OF    TRAINS.     PENALTY.     A 

bell,  of  at  least  twenty  pounds  weight,  must  be  placed  on 
each  locomotive  engine,  and  be  rung  at  a  distance  of  at 
least  eighty  rods  from  the  place  where  the  railroad  crosses 
any  street,  road,  or  highway,  and  be  kept  ringing  until  it 
has  crossed  such  street,  road,  or  highway;  or  a  steam  whis- 
tle must  be  attached,  and  be  sounded,  except  in  cities,  at 
the  like  distance,  and  be  kept  sounding  at  intervals  until  it 
has  crossed  the  same,  under  a  penalty  of  one  hundred  dol- 
lars for  every  neglect,  to  be  paid  by  the  corporation  operat- 
ing the  railroad,  which  may  be  recovered  in  an  action  pros- 
ecuted by  the  district  attorney  of  the  proper  county,  for  the 
use  of  the  state. 

[Liability  in  damages.]  The  corporation  is  also  liable  for 
all  damages  sustained  by  any  person,  and  caused  by  its  lo- 
comotives, train,  or  cars,  when  the  provisions  of  this  sec- 
tion are  not  complied  with. 

History:  Enacted  March  21,  1872^  founded  vipon  §  41  Act  May 
20,    1861,   Stats.    1861,   p.    623. 

254 


Tit.III.ch.III.]        REFUSING  TO  PAY  FARE.  §§487-489 

§487.     PASSENGER    REFUSING   TO    PAY    FARE.     If 

any  passenger  refuses  to  pay  his  fare,  or  to  exhibit  or  sur- 
render his  ticket,  when  reasonably  requested  so  to  do,  the 
conductor  and  employees  of  the  corporation  may  put  him  and 
his  baggage  out  of  the  cars,  using  no  unnecessary  force,  at 
any  usual  stopping  place,  or  near  any  dwelling-liouse,  on 
stopping  the  train. 

History:     Enacted  March  21,   1872,  founded  upon   §  49  Act  May 
20,    1861.    Stats.    1861,    p.    625. 


§488.  OFFICERS  TO  WEAR  BADGE.  Every  con- 
ductor, baggage-master,  engineer,  brakeman,  or  other  em- 
ployee of  any  railroad  corporation,  employed  on  a  passen- 
ger-train or  at  stations  for  passengers,  must  wear  upon  his 
liat  or  cap,  or  in  some  conspicuous  place  on  the  breast  of 
his  coat,  a  badge,  indicating  his  office  or  station,  and  the 
initial  letters  of  the  name  of  the  corporation  by  which  he  is 
employed.  No  collector  or  conductor,  without  such  badge, 
is  authorized  to  demand  or  to  receive  from  any  passenger 
any  fare,  toll,  or  ticket,  or  exercise  any  of  the  powers  of  his 
office  or  station;  and  no  other  officer  or  employee,  without 
such  badge,  has  any  authority  to  meddle  or  interfere  with 
any  passenger   or   property. 

HLslory:  Enacted  March  21,  1872,  founded  upon  §  50  Act  May 
20,    1861,    Stats.    1861,   p.    625. 


§489.     RATE      OF     CHARGES     ESTABLISHED      BY 
RAILROAD     COMMISSIONERS.       NOTICE     SERVED. 

Whenever  the  board  of  railroad  commissioners,  in  the  dis- 
charge of  its  duties,  establishes  or  adopts  rates  of  charges 
for  the  transportation  of  passengers  and  freight,  pursuant 
to  the  provisions  of  the  constitution,  said  board  must  serve 
a  printed  schedule  of  such  rates,  and  of  any  changes  that 
may  be  made  in  such  rates,  upon  the  person,  copartnershi]). 
company,   or   corporation   afTected    thereby;   and 

255 


§490  CIVIL  CODE.  [Div.I,Pt.IV. 

[Copies  of  rates  to  be  posted,  where  and  by  whom.]  Upon 
such  service  it  is  the  duty  of  such  person,  copartnership, 
company,  or  corporation  to  immediately  cause  copies  of  the 
same  to  be  posted  in  all  its  offices,  station-houses,  ware- 
houses, and  landing  offices  affected  by  such  rates,  or  change 
of  rates,  in  such  manner  as  to  be  accessible  to  public  inspec- 
tion  during  usual   business  hours. 

Said  board  [of  railroad  commissioners]  must  also  make 
such  further  publication  thereof  as  it  deems  proper  and  nec- 
essary for  the  public  good.  If  the  party  to  be  served  is  a 
corporation,  such  service  may  be  made  upon  the  president, 
vice-president,  secretary,  or  managing  agent  thereof,  and  if 
a  copartnership,  upon  any  partner  thereof. 

[Rates  go  into  effect,  when.]  The  rates  of  charges  estab- 
lished or  adopted  by  said  board,  pursuant  to  the  constitu- 
tion and  the  laws  of  this  state,  must  go  into  force  and  efifect 
on  the  twentieth  day  after  service  of  such  schedule  of  rates, 
or  changes  in  rates,  upon  the  person,  copartnership,  company, 
or  corporation  affected  thereby. 

History:  Enacted  March  21,  1S72,  founded  upon  §  51  Act  May 
20,  1861,  Stats.  1861,  p.  625;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  370,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  p.   575. 

§490.  RAILROAD  TICKETS  ENTITLE  PURCHASER 
TO  WHAT.  PENALTY  FOR  FAILURE  TO  PROVIDE 
SUCH  TICKETS.  Every  railroad  corporation  must  provide, 
and  on  being  tendered  the  fare  therefor  fixed,  as  provided  in 
the  preceding  section,  furnish  to  every  person  desiring  a  pas- 
sage on  their  passenger-cars  a  ticket,  which  entitles  the  pur- 
chaser to  a  ride,  and  to  the  accommodations  provided  on 
their  cars,  from  the  depot  or  station  where  the  same  is  pur- 
chased to  any  other  depot  or  station  on  the  line  of  their 
road.  Every  such  ticket  entitles  the  holder  thereof  to  ride 
on  their  passenger-cars  to  the  station  or  depot  of  destination, 

256 


Tit.III,ch.III.]  QUALITY  OF  RAILS.  §§  491,  492 

or  an3^  intermediate  station,  and  froiTi  any  intermediate  sta- 
tion to  the  depot  of  destination  designated  in  the  ticket,  at 
any  time  within  six  months  thereafter.  Any  corporation 
failing  so  to  provide  and  furnish  tickets,  or  refusing  the  pas- 
sage which  the  same  calls  for  when  sold,  must  pay  to  the  per- 
son so  refused  all  actual  damages  caused  thereby,  with  rea- 
sonable counsel  fees  expended  in  recovering  same. 

History:      Enacted    March    21,    1S72;    amended    March    23,    1901, 
Stats,  and  Amdts.  1900-1,  p.  600. 


§491,  QUALITY  OF  RAIL  TO  BE  USED.  All  rail- 
roads, other  than  street  railroads  and  those  used  exclusively 
for  carrying  freight  or  for  mining  purposes,  built  by  corpor- 
ations organized  under  this  chapter,  must  be  constructed 
of  the  best  quality  of  iron  or  steel  rail,  known  as  T  or  H 
rail,  or  other  pattern  of  equal  utility. 

History:  Enacted  March  21,  1872,  founded  upon  §  57  Act  May 
20,  1861,  Stats.  1861,  p.  627;  amended  March  30,  1874,  Code 
Amdts.   1873-4,  p.   212. 


§  492.  ELEVATED  OR  UNDERGROUND  RAILROADS. 
WHO  MAY  GRANT  FRANCHISE.  The  legislative  or 
other  body  to  whom  is  intrusted  the  government  of  the 
county,  city  and  county,  city,  or  town,  under  such  regula- 
tions, restrictions,  and  limitations,  and  upon  such  terms  and 
payment  of  license  tax  as  the  county,  city  and  county,  city, 
or  town  authority  may  provide,  may  grant  franchises  for 
the  construction  of  elevated  or  underground  railroad  tracks 
over,  across,  or  under  the  streets  and  public  highways  of 
any  such  county,  city  and  count}',  city,  or  town,  for  the 
term  not  exceeding  fifty  years; 

[Petition — By  whom  signed.]  Provided,  that  before  grant- 
ing such   franchise   there   shall   be   presented   to   such  legisla- 

»  257 


§§493,494  CIVIL  CODE.  [Div.I,Pt.IV. 

tive  or  other  body  a  petition  signed  by  the  owners  of  a  ma- 
jority of  the  landed  property,  other  than  public  property,  on 
the  line  of  said  elevated  portion  applied  for. 

History:  Enacted  March  27,  1895,  Stats,  and  Amdts.  1895,  p. 
241;  repealed  by  Code  Commissfon,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  370,  held  unconstitutional,  see  history, 
§  4  ante. 

§493.     TO  WHAT  ABOVE  SECTION  APPLIES.     The 

provisions  of  section  four  hundred  and  ninety-two  shall  ap- 
ply to  any  railway  corporation  heretofore  or  hereafter  in- 
corporated. 

History:  Enacted  March  27,  1895,  Stats,  and  Amdts.  1895,  p. 
242;  repealed  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  370,  held  unconstitutional,  see  history,  §  4 
ante;  amended  March   21,  1905,  Stats,  and  Amdts.   1905,  p.   576. 

§494.  RAILROAD  CORPORATIONS  MAY  SELL 
PROPERTY  AND  FRANCHISES  TO  OTHER  RAIL- 
ROADS. Any  railroad  corporation,  person  or  persons,  firm 
or  corporation,  owning  any  railroad  in  this  state,  may  sell, 
convey,  and  transfer  its  property  and  franchises,  or  any  part 
thereof,  to  any  other  railroad  corporation,  whether  organ- 
ized under  the  laws  of  this  state  or  of  any  other  state  or 
territory,  or  under  any  act  of  congress;  and  any  other  such 
railroad  corporation  receiving  such  conveyance  may  hold 
and  operate  such  railroad  franchises  and  property  within  this 
state,  build  and  operate  extensions  and  branches  thereof,  and 
thereunto  exercise  the  right  of  eminent  domain,  and  do  any 
other  business  in  connection  therewith,  as  fully  and  effec- 
tually to  all  intents  and  purposes  as  if  such  corporation  were 
organized  under  the  laws  of  this  state; 

[Terms  and  conditions  of  sale.]  Provided,  that  before 
such  sale,  conveyance,  or  transfer  shall  become  operative,  an 
agreement  in  writing  must  be  executed  by  the  parties  there- 
to, containing  the  terms  and  conditions  of  the  purchase  and 

258 


Tit. Ill, ch. III.]      SELLING  TO  OTHER  RAILROAD.  §494 

sale,  and  its  execution  must  be  authorized  by  the  board  of 
directors  and  ratified  by  three  fourths  of  the  stockholders  of 
each  of  the  railroad  companies  that  are  parties  to  such  con- 
veyance and  transfer,  and  said  agreement  or  conveyance 
shall  be  recorded  in  each  county  through  which  said  road  or 
roads  pass  in  this  state;  and 

[Not  relieved  from  debts  incurred.]  Provided  further,  that 
no  sale,  conveyances,  or  transfer  under  this  act  shall  relieve 
the  franchise  or  property  sold,  conveyed,  or  transferred,  from 
the  liability  of  the  grantor  contracted  or  incurred  in  the  op- 
eration, use,  or  enjoyment  of  such  franchise  or  any  of  its 
privileges; 

[Competing  roads  shall  not  be  purchased.]  Provided,  that 
this  section  shall  not  authorize  any  corporation  to  purchase 
any  railroad  property  operated   in   competition   with   it; 

[Fares  and  toll  shall  not  be  increased.  When  lowered 
cannnot  be  raised.]  And  provided  further,  that  any  or  all 
established  rates  for  fares  and  tolls  for  carrying  passengers 
or  freight  between  any  points  upon  any  railroad  purchased 
under  the  provisions  of  this  act,  shall  not  be  increased  with- 
out the  consent  of  the  governmental  authority  in  which  is 
vested  by  law  the  power  to  regulate  fares  and  freights;  and 
provided  further,  that  whenever  a  railroad  corporation,  which 
has  purchased  any  line  of  road  under  this  act,  shall  for  the 
purposes  of  competing  with  any  other  common  carrier  lower 
its  rates  for  transportation  of  passengers  or  freight  from  one 
point  to  another  upon  such  line  purchased,  such  reduced  rates 
shall  not  be  again  raised  or  increased  from  such  standard 
without  the  consent  of  the  governmental  authority  in  which 
shall  be  vested  the  power  to  regulate  fares  and  freights;  and 

[Penalty  for  violation — Duty  of  attorney-general.]  Pro- 
vided further,  that  for  every  violation  of  the  provisions  of 
this  act  on  the  part  of  directors  or  governing  officers  of  said 
corporation,  the  state  shall  be  entitled  to  recover  from  such 
offending  railroad  company  the  sum  of  ten  thousand  dollars. 
It  is  hereby  declared  to  be  the  duty  of  the  attorney-general 

259 


§494  .  CIVIL,  CODE.  [Div.I.Pt.IV. 

of  the  state,  in  the  event  of  any  such  violation,  to  demand 
and  collect  from  such  company  the  said  penalty;  and  he  is 
hereby  authorized  and  empowered  to  prosecute  all  the  nec- 
essary actions  in  the  name  of  the  people  of  the  state  of  Cali- 
fornia against  such  company  in  the  courts  of  the  state.  All 
money  so  collected  shall  be  paid  into  the  general  fund  of 
this  state. 

HLstory:  Enacted  Feb.  27,  1903,  Stat.s.  and  Amdts.  1903, 
p.   50. 

Prior  legislation  covering  the  same  ground,  with  same  num- 
ber to  section.  In  almost  the  same  language,  was  enacted 
March  22,  1899;  the  latter  enactment  made  no  reference  to  the 
former;  to  remedy  this  anomalous  condition  the  last  session  of 
the  legislature  passed  an  act  repealing  the  former  of  these 
two  sections  494  In  the  following  terms:  "Section  four  hundred 
and  ninety-four  of  the  Civil  Code,  as  approved  March  22,  1899, 
is  hereby  repealed;  provided,  that  nothing  in  this  act  contained 
shall  be  deemed  to  repeal  any  of  the  provisions  of  section  494 
of  said  code  as  approved  Februry  27,  1903."  See  Stats,  and 
Amdts.   1905,   p.    576. 


260 


Tit. IV.]  STREET  RAILWAYS— TRACKS.  §497 


TITLE  IV. 

STREET    RAILROAD    CORPORATIONS. 

§  497.  Railway  tracks.  How  authority  is  obtained  to  lay.  Pro- 
pelling  power.      Limitations  and   restrictions. 

§  498.     Limitations   and   restrictions.      Manner    of   laying   tracks. 

§  499.     Two    lines    street   railway   may    use    same    track. 

§  499[a].City  trustees  may  permit  two  lines  of  street  railway 
may   use   same   track. 

§  500.     Crossing   tracks.      Obstruction. 

§  501.  Rates  of  fare  on  street-cars.  [Manner  of  construction 
of   street-cars.]      Penaltj\ 

§  502.  Time  allowed  for  commencing  and  completing  work. 
Penalty.     Extension  of  time. 

§  503.     May  make  further  regulations  and   rules. 

§  504.     Penalty   for   overcharging. 

§  505.     Street   railroads   must  furnish    tickets.      Penalty. 

§  506.     Proof  of  agency. 

§  507.     Reserved  rights. 

§  508.     License  to  be  paid  to  city  or  town. 

§  509.     Track  for  grading  purposes.     [Time  may  remain.] 

§  510.     Law  governing  street  railroads. 

§  511.  Title  applicable  to  natural  persons  alike  with  corpora- 
tions. 

§497.  RAILWAY  TRACKS.  HOW  AUTHORITY  IS 
OBTAINED  TO  LAY.  PROPELLING  POWER.  LIM- 
ITATIONS AND  RESTRICTIONS.  Authority  to  lay  rail- 
road tracks  through  the  streets  and  public  highways  of  any 
incorporated  city,  city  and  county,  or  town,  may  be  ob- 
tained for  a  term  of  years  not  exceeding  fifty,  from  the 
trustees,  council,  or  other  body  to  whom  is  intrusted  the 
government  of  the  city,  city  and  county,  or  town,  under  such 
restrictions  and  limitations,  and  upon  such  terms  and  pay- 
ment of  license  tax,  as  the  city,  city  and  county,  or  town  au- 
thority' may  provide. 

[Motive  power.]  In  no  case  must  permission  be  granted 
to  propel  cars  upon  such  tracks  otherwise  than  by  electric- 

261 


§498  CIVIL    CODE.  [Div.I,Pt.IV. 

ity,  horses,  mules,  or  by  wire  ropes  running  under  the  streets 
and  moved  by  stationary  engines,  unless  for  special  reasons 
in  this  title  hereinafter  mentioned;  provided,  however,  that 
such  board  or  body  in  granting  the  right,  or  at  any  time 
after  the  same  is  granted,  to  use  electricity  or  any  other  of 
said  modes,  shall  have  power  to  impose  such  terms,  restric- 
tions, and  limitations  as  to  the  use  of  streets  and  the  con- 
struction and  mode  of  operating  such  electric  and  other  roads 
as  may,  by  such  board  or  body,  be  deemed  for  the  public 
safety  or  welfare. 

History:  Enacted  March  21,  1S72,  founded  upon  §  1  Act 
March  29,  1870,  Stats.  1869-70,  p.  481;  amended  March  3,  1876, 
Code  Amdts.  1875-6,  p.  76;  Feb.  25,  1891,  Stats,  and  Amdts.  1891, 
p.  12;  amended  by  Code  Commission,  Act  Marcli  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  370,  held  unconstitutional,  see  history, 
§  4  ante. 


§498.  LIMITATIONS  AND  RESTRICTIONS.  MAN- 
NER OF  LAYING  TRACKS.  The  city  or  town  authorities, 
in  granting  the  right  of  way  to  street-railroad  corporations, 
in  addition  to  the  restrictions  which  they  are  authorized  to 
impose,  must  require  a  strict  compliance  with  the  following 
conditions,  except  in  the  cases  of  prismoidal  or  other  ele- 
vated railways.  In  such  cases,  said  railway  shall  be  required 
to  be  constructed  in  such  a  manner  as  will  present  the  least 
obstruction  to  the  freedom  of  the  streets  on  which  it  may 
be  erected,  when  allowed  by  the  granting  power: 

1.  To  construct  their  tracks  on  thqse  portions  of  streets 
designated  in  the  ordinance  granting  the  right,  which  must 
be  as  nearly  as  possible  in  the  middle  thereof. 

2.  To  plank,  pave,  or  macadamize  the  entire  length  of  the 
street,  used  by  their  track,  between  the  rails,  and  for  two 
feet  on  each  side  thereof,  and  between  the  tracks,  if  there 
be  more  than  one,  and  to  keep  the  same  constantly  in  repair, 
flush  with  the  street,  and  with  good  crossings. 

262 


Tit. IV.]  LIMITATIONS,  ETC.,  ON  TRACKS.  §499 

3.  That  the  tracks  must  not  be  more  than  five  feet  wide 
within  the  rails,  and  must  have  a  space  between  them  suf- 
ficient to  allow  the  cars  to  pass  each  other  freely. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code  Amdts.  1873-4,  p.  212;  April  3,  1876,  Code  Amdts.  1875-6, 
p.  77;  amended  by  Code  Commission,  Act  Marcli  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  371,  held  unconstitutional,  see  history, 
§  4   ante. 

Prisinoidal  niiUvaj. — The  exception  as  to  "prismoidal  and 
other  elevated  railways"  was  introduced  by  the  amendment  of 
1876.  A  "prismoidal  railway"  is  one  having  a  prism-shaped 
single  continuous  rail,  beam,  or  truss  supported  on  posts  or 
columns.  The  motor  and  cars  run  astride  the  beam,  the  motor 
being  provided  with  grip-wheels  to  obtain  the  hold  on  the 
track  requisite  for  draft.  This  is  a  species  of  single-rail  type 
of  railway,  an  improvement  on  the  Djiboniti-monorail  con- 
ceived and  put  in  operation  by  M.  Lartigue  a  century  ago. 
There  are  several  different  systems  or  modifications  of  this 
railway.  In  the  Cook  System,  the  Barmen  roads,  and  the  Ro- 
manoff System  in  Russia,  the  motor  and  carriage  are  suspended 
in  the  air,  running  on  an  inverted  rail.  The  idea  has  been  most 
liighly  developed  and  perfected  in  the  United  States,  in  what  is 
known  as  the  Cook  Ss'stem,  with  the  Behr  System  in  England 
a  close  second.  The  latter  system  has  been  in  operation  in 
Ballyhunnion,  Ireland,  for  several  years,  and  a  road  of  this 
kind  has  recently  been  completed  from  Manchester  to  Liver- 
pool— a  distance  of  thirty-four  miles — on  vsrhich  the  regular 
running  time  is  twenty  minutes, — just  one  half  the  time  of  the 
swiftest  train  on  the  two-rail  road.  The  improved  monorail 
seems  to  have  solved  the  problem  of  rapid,  safe,  and  cheap 
transportation.  But  neither  the  Tunis  road  nor  the  Behr  Sys- 
tem is,  properly  speaking,  an  elevated  road,  but  a  surface  rail- 
way. In  each  the  motors  and  cars  are  mounted  on  two-wheel 
trucks  geared  tandem  fashion,  running  on  a  rail  strung  along 
the  ground,   with   an   inverted   rail   overhead. 


§499.  TWO  LINES  OF  STREET  RAILWAY  MAY 
USE  SAME  TRACK.  The  legislative  body  of  any  incor- 
porated city,  city  and  county,  or  town,  may  permit  two  or 
more  lines  of  street  railway  to  use  the  same  portion  of  the 
same  street  or  the  same  tracks  upon  such  terms  as  may  be 

263 


§499  CIVIL    CODE.  [Div.I.Pt.IV. 

agreed  upon  by  the  companies  operating  such  railways;  but 
no  permission  shall  be  granted  to  one  company  to  use  the 
same  tracks  or  portion  of  the  sanie  street  for  a  distance  of 
more  than  five  consecutive  blocks  without  the  consent  of  the 
company  occupying  said  portion  of  the  street  and  then  only 
upon  payment  of  an  equal  portion  of  the  cost  of  construc- 
tion of  the  tracks  and  appurtenances  used  by  such  railways 
jointly; 

[City  may  use.]  Provided,'  that  any  incorporated  city,  city 
and  county,  or  town  may  ow-n  and  operate  street  railways 
within  or  without  the  municipal  limits,  and  may  occupy  the 
same  street  or  tracks  occupied  or  used  by  any  street  railway 
company  within  its  limits  upon  payment  to  such  company 
of  an  equal  portion  of  the  estimated  cost  of  construction,  at 
the  time  of  such  occupation,  of  the  tracks  or  appurtenances 
to  be  used  jointly  by  said  company  and  said  city,  city  and 
county,  or  town. 

[Tracks  of  different  gauge.]  Where  such  portion  of  such 
street  shall  be  occupied  by  a  track  or  tracks  of  a  different 
gauge  from  the  track  or  tracks  proposed  to  be  constructed 
thereon  by  a  line  of  street  railway  under  a  different  manage- 
ment, such  last-mentioned  line  of  street  railway  may  never- 
theless construct  its  track  or  tracks,  subject  to  the  limitation 
before  prescribed,  over  the  same  ground  as  may  be  occupied 
by  such  prior  track  or  tracks;  provided,  the  same  can  be  so 
constructed  as  not  to  interfere  with  the  operation  of  such 
prior  track  or  tracks  beyond  such  necessary  interference 
therewith  as  shall  be  incident  to  such  construction  with  rea- 
sonable skill,  care  and  diligence. 

History:  Enacted  March  21,  1S72;  amended  February  25,  1891, 
Stats,  and  Amdts.  1891,  p.  13;  March  21,  1907,  Stats,  and  Amdts. 
1907,  p.  837,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  415;  February 
15„1911,  p.   60. 

This  section  was  again  amended  on  April  24,  1911,  w^hich 
amendment  is  given  below  as  §499[a]. 

264 


Tit.IV.]  TWO  LINES  MAT  USE  ONE  TRACK.  §  499[a] 

§499[a].  CITY  TRUSTEES  MAY  PERMIT  TWO 
LINES  OF  STREET  RAILWAY  MAY  USE  SAME 
TRACK.  The  legislative  body  of  any  incorporated  city,  city 
and  county,  or  town,  may  permit  two  or  more  lines  of  street 
railway  to  use  the  same  portion  of  the  same  street  or  the 
same  tracks  upon  such  terms  as  maj^  be  agreed'  upon  by  the 
companies  operating  such  railways;  but  no  permission  shall 
be  granted  to  one  company  to  use  the  same  tracks  or  por- 
tions of  the  same  street  for  a  distance  of  more  than  five  con- 
secutive blocks  without  the  consent  of  the  person  or  com- 
pany occupying  said  portion  of  the  street  and  then  only  upon 
payment  of  an  equal  portion  of  the  cost  of  construction  of 
the  tracks  and  appurtenances  used  by  such  railways  jointly; 
provided,  that  any  incorporated  city,  city  and  county,  or 
town  may  own  and  operate  street  railways  within  or  with- 
out the  municipal  limits,  and  maj^  occupy  the  same  street 
or  tracks  occupied  or  used  by  anj^  street  railway  within  its 
limits  for  any  number  of  blocks  upon  payment  to  the  owner 
thereof  of  an  equal  portion  of  the  estimated  cost  of  con- 
struction, at  the  time  of  such  occupation,  of  such  tracks  or 
appurtenances  as  such  city,  city  and  countj'^,  or  town  may 
elect  to  use  jointly'  with  said  street  railway.  Where  such 
portion  of  such  street  shall  be  occupied  by  a  track  or  tracks 
of  a  different  gauge  from  the  track  or  tracks  proposed  to  be 
constructed  thereon  by  a  line  of  street  railway  under  a  dif- 
ferent management,  such  last-mentioned  line  of  street  rail- 
way may  nevertheless  construct  its  track  or  tracks,  subject 
to  the  limitation  before  prescribed,  over  the  same  ground 
as  may  be  occupied  by  such  prior  track  or  tracks;  provided 
the  same  can  be  so  constructed  as  not  to  interfere  with  the 
operation  of  such  prior  track  or  tracks  bej'ond  such  neces- 
sary interference  therewith  as  shall  be  incident  to  such  con- 
struction with  reasonable  skill,  care  and  diligence. 

History:  Enacted  March  21,  1872;  amended  February  25,  1891, 
Stats,  and  Amdts.  1891,  p.  13;  March  21,  1907,  Stats,  and  Amdts. 
1907.  p.  837,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  415;  February 
15  and  April  24.  J911,  pp.   60,  1101. 

265 


§§500-502  CIVIL  CODE.  [Div.I.Pt.IV. 

§500.     CROSSING    TRACKS.     OBSTRUCTIONS.     Any 

proposed  railroad  track  may  be  permitted  to  cross  any  track 
already  constructed,  the  crossing  being  made  as  provided  in 
chapter  two,  title  three,  of  this  part.  In  laying  down  the 
track  and  preparing  therefor,  not  more  than  one  block  must 
be  obstructed  at  any  one  time,  nor  for  a  longer  period  than 
ten  working  days. 

History:     Enacted  March   21,   1S7  2. 

§  501.  RATES  OF  FARE  ON  STREET  CARS.  [MAN- 
NER OF  CONSTRUCTION  OF  STREET  CARS.]  PEN- 
ALTY. The  rates  of  fare  on  the  cars  must  not  exceed  ten 
cents  for  one  fare  for  any  distance  under  three  miles,  and 
in  municipal  corporations  of  the  first  class  must  not  exceed 
five  cents  for  each  passenger  per  trip  of  any  distance  in  one 
direction  either  going  or  coming,  along  any  part  of  the  whole 
length  of  the  road  or  its  connections.  The  cars  must  be  of 
the  most  approved  construction  for  the  comfort  and  con- 
venience of  passengers,  and  provided  with  brakes  to  stop 
the   same,   when   required. 

[Fine  for  violation.]  A  violation  of  the  provisions  of  this 
section  subjects  the  corporation  to  a  fine  of  one  hundred 
dollars  for  each  offense. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p,  371,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   16,   1903,  Stats,   and  Amdts,   1903,  pp.   172-173. 

§  502.  TIME  ALLOWED  FOR  COMMENCING  AND 
COMPLETING  WORK.  PENALTY.  EXTENSION  OF 
TIME.  Work  to  construct  the  railroad  must  be  commenced 
in  good  faith  within  not  more  than  one  year  from  the  date 
of  the  taking  effect  of  the  ordinance  granting  the  right  of 
way,  and  said  work  must  be  completed  within  not  more  than 
three  years  after  the  taking  effect  of  such  ordinance;  pro- 
vided, that  the  governing  body  of  such  municipal  corpora- 

266 


Tit. IV.]         REGULATIONS  AND  RULES.  §503 

tion  at  the  time  of  granting  said  right  of  way  shall  have  the 
power  to  fix  the  time  for  either  the  commencing  or  comple- 
tion, or  both,  of  said  work;  not,  however,  to  a  time  less 
than  six  months  for  commencing,  and  not  less  than  eighteen 
months  for  completing  the  same. 

[Failure  to  comply — Forfeiture.]  A  failure  to  comply 
with  either  of  the  foregoing  provisions  of  this  section,  or 
with  either  of  the  provisions  of  the  ordinance  granting  said 
right  of  way,'  works  a  forfeiture  of  the  right  of  way,  and 
also  of  the  franchise,  unless  the  uncompleted  portion  is 
abandoned  by  the  person  or  corporation  to  whom  said  right 
of  way  is  granted,  with  the  consent  of  the  authorities  grant- 
ing the  right  of  way,  such  abandonment  and  consent  to  be 
in  writing. 

[Extension — Who  may  grant — When  and  for  w^hat  term.] 
The  authority  granting  the  right  of  way  shall  have  the  pow- 
er to  grant  ^n  extension  of  time  for  the  completion  of  said 
work,  if  it  appear  that  the  work  has  been  commenced  within 
the  time  fixed,  and  prosecuted  in  good  faith;  but  no  exten- 
sion of  time  shall  be  granted  for  the  commencement  of  said 
work,  and  shall  not  be  granted  for  more, than  one  year  for 
the  completion  of  the  same.  All  extensions  of  time  shall 
be  in  writing,  and  made  a  matter  of  record  in  the  municipal- 
ity. Provided  further,  that  this  act  shall  not  in  any  way 
afiect  any  franchise  or  right  of  way  granted  before  its  pas- 
sage. 

History:  Enacted  March  21,  1S72;  amended  Feb.  25,  1895, 
Stats,   and  Amdts.  1895,  p.   17.      In   effect   Feb.    25,   1895. 

§503.  MAY  MAKE  FURTHER  REGULATIONS  AND 
RULES.  Cities  and  towns  in  or  through  which  street-rail- 
roads run  may  make  such  further  regulations  for  the  govern- 
ment of  such  street-railroads  as  may  be  necessary  to  a  full 
enjoyment  of  the  franchise  and  the  enforcement  of  the  con- 
ditions provided  herein. 

History:  Enacted  March  21,  1872,  founded  upon  §  10  Act 
March    29,    1870,    Stats.    1869-70,    p.    483. 

267 


§504-506  CIVIL  CODE.  [Div.I.Pt.IV. 

§504.  PENALTY  FOR  OVERCHARGING.  Any  cor- 
poration, or  agent  or  employee  thereof,  demanding  or  charg- 
ing a  greater  sum  of  money  for  fare  on  the  cars  of  such 
street  railroad  than  that  fixed,  as  provided  in  this  title,  for- 
feits to  the  person  from  whom  such  sum  is  received,  or  who 
is  thus  overcharged,  the  sum  of  two  hundred  dollars,  to  be  re- 
covered in  a  civil  action,  in  any  justice's  court  ha\'ing  juris- 
diction thereof,  against  the  corporation. 

History:  Enacted  March  21,  1S72,  founded  upon  §  1  Act  April 
14,  1863,  Stats.  1863,  p.  296;  amended  by  Code  Commission,  Act 
■  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  371,  held  unconsti- 
tutional,  see   history,    §  4  ante. 

§  505.  STREET  RAILROADS  MUST  FURNISH  TICK- 
ETS. PENALTY.  Every  street-railroad  corporation  must 
provide,  and,  on  request,  furnish  to  all  persons  desiring  a 
passage  on  its  cars,  any  required  quantity  of  passenger  tick- 
ets or  checks,  each  to  be  good  for  one  ride. 

[Penalty  for  failure  to  comply.]  Any  corporation  failing 
to  i)rovide  and  furnish  tickets  or  checks  to  any  person  desir- 
ing to  purchase  the  same  at  not  exceeding  the  rate  herein- 
before described,  shall  forfeit  to  such  person  the  sum  of  two 
hundred  dollars,  to  be  recovered  as  provided  in  the  preced- 
ing section;  provided,  that  the  provisions  of  this  section 
shall  not  apply  to  such  street-railroad  corporations  as  charge 
but  five  cents  fare. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
14,  1863,  Stats.  1863,  p.  297;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.  213;  March  13,  1883,  Stats,  and  Amdts.  1883,  p.  84. 
lu  force  March   13,   1883. 


§  506.  PROOF  OF  AGENCY.  Upon  the  trial  of  an  ac- 
tion for  any  of  the  sums  forfeited,  as  provided  in  the  two 
preceding  sections,  proof  that  the  person  demanding  or  re- 
ceiving the  money  as  fare,  or  for  the  sale  of  the  ticket  or 
check,  was   at   the   time  of   making  the   demand   or  receiving 

268 


Tit.IV.]  RESERVED  RIGHTS— LICENSES.  §§  507,  508 

the  money,  engaged  in  an  office  of  the  corporation,  or  vehicle 
belonging  to  the  corporation,  shall  be  prima  facie  evidence 
that  such  person  was  the  agent,  servant,  or  employee  of  the 
corporation,  to  receive  the  money,  and  give  the  ticket  or 
check   mentioned. 

History:  Enacted  March  21,  1872,  founded  upon  §  3  Act  April 
14,  1863,  Stats.  1863,  p.  297;  amended  March  30,  1874.  Code 
Amdts.    1873-4,   p.    213. 

§507.  RESERVED  RIGHTS.  In  every  grant  to  con- 
struct street  railroads,  the  right  to  grade,  sewer,  pave,  ma- 
cadamize, or  otherwise  improve,  alter,  or  repair  the  streets 
or  highways,  is  reserved  to  the  corporation,  and  cannot  be 
alienated  or  impaired;  such  work  to  be  done  so  as  to  ob- 
struct the  railroad  as  little  as  possible,  and,  if  required,  the 
corporation  must  shift  its  rails  so  as  to  avoid  the  obstruc- 
tions made    thereby. 

History:  Enacted  March  21,  1872,  founded  upon  §  9  Act  1870, 
Stats.  1869-70,  p.  483;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.  214;  amended  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  372,  held  unconstitutional,  see 
history,   §  4  ante. 

§  508.     LICENSE  TO  BE  PAID  TO  CITY  OR  TOWN. 

Each  street-railroad  corporation  must  pay  to  the  authorities 
of  the  city,  town,  county,  or  city  and  county,  as  a  license 
upon  each  car,  such  sum  as  the  authorities  may  fix,  not  ex- 
ceeding fifty  dollars  per  annum  in  the  city  of  San  Francisco, 
nor  more  than  twentj^-five  dollars  per  annum  in  other  cities 
or  towns.  Where  any  street  railroad  connects  or  runs 
through  two  or  more  cities  or  towns,  a  proportionate  or 
equal  share  of  such  license  tax  must  be  paid  to  each  of  the 
cities  or  towns;  and  no  such  license  tax  is  due  the  county 
authorities  where  the  same  is  paid  to  any  city  or  town  au- 
thority. 

Hi.<»tory:  Enacted  March  21,  1872,  founded  upon  §  10  of  Act 
March    29,   1870,   Stats.    1869-70,  p.    483. 

269 


§§509-511  CIVIL   CODE.  [Div.l.Pt.IV. 

§509.  TRACK  FOR  GRADING  PURPOSES.  [TIME 
MAY  REMAIN.]  The  right  to  lay  down  a  track  for  grad- 
ing purposes,  and  maintain  the  same  for  a  period  not  to  ex- 
ceed three  years,  may  be  granted  by  the  corporate  authorities 
of  any  city  or  town,  or  city  and  county,  or  supervisors  of 
any  city  or  county,  but  no  such  track  must  remain  more  than 
three  years  upon  any  one  street;  and  it  must  be  laid  level 
with  the  street,  and  must  be  operated  under  such  restrictions 
as  not  to  interfere  with  the  use  of  the  street  by  the  public. 

[Motive  power.]  The  corporate  authorities  of  any  city  or 
town,  or  city  and  county,  may  grant  the  right  to  use  steam 
or  any  other  motive  power  in  propelling  the  cars  used  on 
such  grading  track,  when  public  convenience  or  utility  de- 
mands it,  but  the  reasons  therefor  must  be  set  forth  in  the 
ordinance,  and  the  right  to  rescind  the  ordinance  at  any  time 
reserved. 

History:  Enacted  March  21,  1S72,  founded  upon  §  11  of  Act 
March    29,    1870,    Stats.    1869-70,  p.    483. 

§510.     LAW     GOVERNING      STREET      RAILROADS. 

Street  railroads  are  governed  by  the  provisions  of  title  three 
of  this  part,  so  far  as  they  are  applicable,  unless  such  rail- 
roads are  therein  specially  excepted. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    214. 

§5iL  TITLE  APPLICABLE  TO  NATURAL  PER- 
SONS ALIKE  WITH  CORPORATIONS.  When  a  street 
railroad  is  constructed,  owned,  or  operated  by  any  natural 
person,  this  title  is  applicable  to  such  person  in  like  manner 
as  it  is  applicable  to  corporations. 

History:     Enacted  March   21,   1S72. 


270 


Tit. v.]  WAGON  ROADS— SURVEY,   ETC.  §§512,513 


TITLE  V. 
WAGON    ROAD    CORPORATIONS. 

§  512.     Three   commis.sioners   to  act  with   surveyor. 

§  513.     Survey  and  map  to  be  filed  and  approved. 

§  514.  Bridges  or  ferries  on  line.  Tolls,  limits  of.  Franchise 
forfeited,  when. 

§  515.     No   tolls   to   be   charged   on   highwa^■s   or  public   roads. 

§  516.     Rates   of  toll  must  be  posted. 

§  517.     Persons   detained   until    toll   is   paid. 

§  518.     Persons  unnecessarily  detained  or  overcharged,  damages. 

§  519.     Persons  avoiding  toll   to  pay   five   dollars. 

§520.     Penalties  for   trespasses  on   property   of  corporation. 

§  521.     Revenue,  how  appropriated.      [Reduction  of  tolls,  when. J 

§  522.     Property   may  be   mortgaged   or   hypothecated. 

§  523.  This  title  applies  to  natural  persons  as  well  as  corpora- 
tions. 

§  524.  Franchises  granted  for  construction  of  roads  for  use 
of   horseless   vehicles. 

§512.  THREE  COMMISSIONERS  TO  ACT  WITH 
SURVEYOR.  Where  a  corporation  is  formed  for  the  con- 
struction and  maintenance  of  a  wagon  road,  the  road  must 
be  laid  out  as  follows:  Three  commissioners  must  act  in  con- 
junction with  the  surveyor  of  the  corporation,  two  to  be  ap- 
pointed by  the  board  of  supervisors  of  the  county  through 
which  the  road  is  to  run,  and  one  by  the  corporation,  who 
must  lay  out  the  proposed  road  and  report  their  proceedings, 
together  with  the  map  of  the  road,  to  the  supervisors,  as 
provided   in   the   succeeding  section. 

History:  Enacted  March  21,  1872,  founded  on  §  2  Act  April 
22,  1S53,  Stats.  1853,  p.  114;  amended  March  30,  1874.  Code 
Amdts.   1873-4,  p.   214. 

§513.  SURVEY  AND  MAP  TO  BE  FILED  AND  AP- 
PROVED. When  the  route  is  surveyed  a  map  thereof  must 
be  submitted   to  and   filed  with   the   board  of  supervisors  of 

271 


§514  CIVIL   CODE.  [Div.I.Pt.IV. 

each  county  through  or  into  which  the  road  runs,  giving  its 
general  course,  and  the  principal  points  to  or  by  which  it 
runs,  and  its  width,  which  must  in  no  case  exceed  one  hun- 
dred feet,  and  the  supervisors  must  either  approve  or  reject 
the  survey. 

If  approved,  it  must  be  entered  of  record  on  the  journal 

of  the  board,  and  such  approval  authorizes  the  use  of  all 
public  lands  and  highways  over  which  the  survey  runs;  but 
the  board  of  supervisors  must  require  the  corporation,  at  its 
own  expense,  and  the  corporation  must  so  change  and  open 
the  highways  so  taken  and  used  as  to  make  the  same  as  good 
as  before  the  appropriation  thereof;  and  must  so  construct 
all  crossings  of  public  highways  over  and  by  its  road  and 
toll-gates,  as  not  to  hinder  or  obstruct  the  use  of  the  same. 

Hi.story!  Enacted  March  21,  1S72,  founded  on  §  1  Act  1S54, 
Stats.  1854,  p.  74;  amended  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  372,  held  unconstitutional,  see 
history,  §  4  ante;  amendment  re-enacted  March  21,  1903,  Stats. 
and  Amdts.   1905,  p.   577. 

§514.  BRIDGES  OR  FERRIES  ON  LINE.  TOLLS, 
LIMIT   OF.     FRANCHISE   FORFEITED,    WHEN.      All 

wagon  road  corporations  may  bridge  or  keep  ferries  on 
streams  on  the  line  of  their  road,  and  must  do  all  things 
necessary  to  keep  the  same  in  repair.  They  may  take  such 
tolls  only  on  their  roads,  ferries,  or  bridges,  as  are  fixed  by 
the  board  of  supervisors  of  the  proper  county  through  which 
the  road  passes,  or  in  which  the  ferry  or  bridge  is  situate. 

[Amount  of  tolls  permissible.]  But  in  no  case  must  the 
tolls  be  more  than  sufificient  to  pay  fifteen  per  cent,  nor  less 
than  ten  per  cent  per  annum,  on  the  cost  of  construction, 
after  paying  for  repairs  and  other  expenses  for  attending  to 
the  roads,  bridges,  or  ferries. 

[Penalty  for  violation.]  If  tolls,  other  than  as  herein  pro- 
vided, are  charged  or  demanded,  the  corporation  forfeits  its 

272 


Tit.V.]  RATES  OF  TOLT.V — POSTING.  §§515,516 

franchise,  and  must  pay  to  the  party  so  charged  one  hundred 
dollars  as  liquidated  damages. 

Historj-:  Enacted  March  21,  1872,  founded  on  §  1  Act  1S57, 
Stats.  18.57,  p.  280;  amended  March  28,  1874,  Code  Amdts.  1873-4, 
p.  272;  March  30,  1874,  Code  Amdts.  1873-4,  pp.  214-215;  amended 
by  Code  Commission,  Act  March  16,  1901,  Stats,  and  Amdts. 
1900-1,  p.  372,  held  unconstitutional,  see  history,  §  4  ante; 
amendment  re-enacted  Ma^ch  21,  1905,  Stats,  and  Amdts.  1905, 
p.   577. 

Note. — The  act  of  March  30,  1874,  covered  the  entire  subject, 
and  repealed,  by  implication,  the  amendment  of  March  2S,  1874, 
although  the  amendment  of  March  28  is  given  as  the  law  in 
former   compilations,   and   no   reference   made   to   amendment    of 

March  30. 

§  515.  NO  TOLLS  TO  BE  CHARGED  ON  HIGHWAYS 
OR  PUBLIC  ROADS.  When  any  highway  or  public  road 
is  taken  and  used  by  any  wagon  road  corporation  as  a  part 
of  its  road,  the  corporation  must  not  place  a  toll-gate  on  or 
take  tolls  for  the  use  of  such  highway  or  public  road  by 
teamsters,  travelers,  drovers,  or  any  one  transporting  prop- 
erty over  the  same. 

History:  Enacted  March  21,  1872,  founded  upon  §  3  Act  April 
22,  1853,  p.  115. 

§516.     RATES    OF    TOLL    MUST    BE    POSTED.     The 

corporation  must  affix  and  keep  up,  at  or  over  each  gate,  or 
in  some  conspicuous  place,  so  as  to  be  conveniently  read, 
a  printed  list  showing,  first,  the  date  when  the  franchise  or 
privilege  under  which  the  right  to  collect  tolls  is  claimed, 
was  granted  and  the  term  of  duration  of  said  franchise;  sec- 
ond, the  date  upon  which  rates  of  tolls  were  last  fixed  by 
the  board  of  supervisors;  and,  third,  the  rates  of  tolls  levied 
and  demanded.  Failure  to  comply  with  the  provisions  of  this 
act  shall  work  an  immediate  forfeiture  of  franchise. 

History:  Enacted  March  21,  1872,  founded  upon  §  30  Act  May 
12,  1853,  Stats.  1853,  p.  176;  amended  Feb.  14,  1901,  Stats,  and 
Amdts.   1900-1,  p.   5.      In  force   Feb.   14,  1901. 

21Z 


§§517-520  CIVIL  CODE.  [Div.I,Pt.IV. 

§517.     PERSONS  DETAINED  UNTIL  TOLL  IS  PAID. 

Each  toll-gatherer  may  prevent  from  passing  through  his 
gate  any  person,  animal,  or  vehicle,  subject  to  toll,  until  the 
toll  authorized  to  be  collected  for  such  passing  has  been  paid. 

History:  Enacted  March  17,  1872,  founded  on  §  29  Act  May 
12,  1853,  Stats.  1853,  p.  176;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  19^0-1,  p.  372,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,   and  Amdts.  1905,  p.   577. 

§518.  PERSONS  UNNECESSARILY  DETAINED  OR 
OVERCHARGED,  DAMAGES.  Every  toll-gatherer  who, 
at  any  gate,  unreasonably  hinders  or  delays  any  traveler  or 
passenger  or  any  vehicle  or  animal  liable  to  the  payment  of 
toll,  or  demands  or  receives  from  any  person  more  than  he 
is  authorized  to  collect,  for  each  offense  forfeits  the  sum  of 
twenty-five  dollars  to  the  person  aggrieved. 

Hi.story:  Enacted  March  21.  1872,  founded  upon  §  31  Act  May 
12,  1853,  Stats.  1853,  p.  176;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  372,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  578. 

§519.  PERSONS  AVOIDING  TOLLS  TO  PAY  FIVE 
DOLLARS.  Every  person  who,  to  avoid  the  payment  of 
the  legal  toll,  with  his  team,  vehicle,  or  horse,  turns  out  of  a 
wagon,  turnpike,  or  plank  road,  or  passes  any  gate  thereon 
on  ground  adjacent  thereto,  and  again  enters  upon  such  road, 
for  each  offense  forfeits  the  sum  of  five  dollars  to  the  cor- 
poration injured. 

History:  Enacted  March  21,  1872,  founded  upon  §  33  Act  May 
12,    18-53,   Stats.    1853,   p.    176. 

§  520.  PENALTIES  FOR  TRESPASSES  ON  PROPER- 
TY OF  CORPORATION.     Every  person  who: 

1.  Wilfully  breaks,  cuts  down,  defaces,  or  injures  any  mile- 
stone or  post  on  any  wagon,  turnpike,  or  plank  road;  or, 

274 


Tit. v.]  REVENUE— MORTGAGES.  §§521,522 

2.  Wilfully  breaks  or  throws  down  any  gate  on  such 
road;   or, 

3.  Digs  up  or  injures  any  part  of  such  road  or  anything 
thereunto  belonging;  or, 

4.  Forcibly  or  fraudulently  passes  any  gate  thereon  with- 
out  having  paid   the   legal  toll; 

For  each  offense  forfeits  to  the  corporation  injured  the 
sum  of  twenty-five  dollars,  in  addition  to  the  damages  re- 
sulting from   his  wrongful   act. 

History:  Enacted  March  21.  1S72,  founded  on  §  32  Act  May 
12,    1853,    Stats.   1853,   p.    176. 


§521.  REVENUE,  HOW  APPROPRIATED.  [RE- 
DUCTION OF  TOLLS,  WHEN.]  The  entire  revenue  de- 
rived from  the  road  shall  be  appropriated:  first,  to  repay- 
ment to  the  corporation  of  the  costs  of  its  construction,  to- 
gether with  the  incidental  expenses  incurred  in  collecting 
toils  and  keeping  the  road  in  repair;  and,  second,  to  the  pay- 
ment of  the  dividend  among  its  stockholders,  as  provided 
in  section  five  hundred  and  fourteen.  When  the  repayment 
of  the  cost  of  construction  is  completed,  the  tolls  must  be 
so  reduced  as  to  raise  no  more  than  an  amount  sufficient  to 
pay  said  dividend,  and  incidental  expenses,  and  to  keep  the 
road  in  good  repair. 

HLstory:  Enacted  March  21,  1872,  founded  on  §  4  Act  April 
22,  1853,  p.  115;  amended  Marth  30,  1874,  Code  Amdts.  1873-4, 
p.  215. 


§522.  PROPERTY  MAY  BE  MORTGAGED  OR  HY- 
POTHECATED. The  corporation  may  mortgage  or  hy- 
pothecate its  road  and  other  property  for  funds  with  which 
to  construct  or  repair  its  road,  but  no  mortgage  or  hypoth- 
ecation is  valid  or  binding  unless  at  least  twenty-five  per 
cent  of  the  capital  stock  subscribed  has  been  paid  in  and 
invested  in   the  construction  of  the  road  and  appurtenances, 

275 


§§523,524  CIVIL  CODE,  [Div.I.Pt.IV. 

and  then  only  after  an  affirmative  vote  of  two-thirds  of  the 
capital   stock   subscribed. 

History:      Enacted   March    21,   1872,    founded   on    §  19    Act   May 

12  ,1853,  Stats.  1853,  p.  173;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  373,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,   Stats,   and  Amdts.   1905,   p.   578. 

§523.  THIS  TITLE  APPLIES  TO  NATURAL  PER- 
SONS AS  WELL  AS  CORPORATIONS.  When  a  wagon, 
turnpike,  or  plank  road  is  constructed,  owned,  or  operated 
by  any  natural  person  this  title  is  applicable  to  such  person 
in  like  manner  as  it  is  applicable  to  corporations. 

History:     Enacted  March  21,   1S72. 

§  524.  FRANCHISES  GRAIsItED  FOR  CONSTRUC- 
TION OF  ROADS  FOR  USE  OF  HORSELESS  VE- 
HICLES. The  legislative  or  other  body  to  whom  is  in- 
trusted the  government  of  any  county,  city  and  county,  city, 
or  town,  may,  under  such  regulations,  restrictions,  and  limita- 
tions as  it  may  provide,  subject  to  existing  laws,  grant  fran- 
chises for  the  construction  of  paths  and  roads,  either  on 
the  surface,  elevated,  or  depressed,  on,  over,  across,  or  un- 
der the  streets  and  public  highway's  of  any  such  county,  city, 
or  town,  for  the  use  of  bicycles,  tricycles,  motorcycles,  and 
other  like  horseless  vehicles,  for  a  term  not  exceeding  fifty 
years. 

In  incorporated  cities  no  franchise  must  be  granted  for  the 
purpose  herein  expressed,  unless  the  consent  in  writing  of 
the  owners  of  a  majority  of  the  frontage  upon  the  road  or 
street  along  which  said  path  or  road  is  sought  to  be  con- 
structed, is  first  had  and  obtained,  and  filed  with  such  legis- 
lative or  governing  body. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  373,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.  578. 

276 


Tit. VI.]  BRIDGES,  FERRIES,  ETC.— TOLL.  §§  528,  529 


TITLE  VI. 

BRIDGES,    FERRY,    WHARF,    CHUTE,    AND    PIER    CORPORA- 
TIONS. 

§  528.     Toll  not  to  be  collected  without  authority. 

§  529.     Corporate  existence  ceases,  when. 

§  530.  President  and  secretary  to  make  annual  report  to  super- 
visors; what  report  must  contain.  Damages  for  fail- 
ure to  report. 

§  531.  This  title  to  apply  to  natural  persons  alike  with  corpora- 
tions. 


§528.  TOLL  NOT  TO  BE  COLLECTED  WITHOUT 
AUTHORITY.  No  corporation  must  construct,  or  take  tolls 
on,  a  bridge,  ferry,  wharf,  chute,  or  pier  until  authority  is 
granted  therefor  b}'  the  supervisors,  or  other  governing 
body  having  authority  in  that  behalf. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
8,  1858,  Stats.  1858,  p.  120,  as  amended  by  §  1  Act  1870,  Stats. 
1869-70,  p.  526;  amended  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  373,  held  unconstitutional,  see 
history,  §  4  ante;  amendment  re-enacted  March  21,  1905.  Stats, 
and  Amdts.   1905,  p.   579. 


§529.  CORPORATE  EXISTENCE  CEASES,  WHEN. 
Every  such  corporation  ceases  to  be  a  body  corporate: 

1.  If,  within  six  months  from  filing  its  articles  of  incor- 
poration, it  has  not  obtained  such  authority  from  the  board 
of  supervisors,  or  other  governing  body  having  authority  in 
that  behalf;  and  if,  within  one  year  thereafter,  it  has  not 
commenced  the  construction  of  the  bridge,  wharf,  chute,  or 
pier,  and  actually  expended  thereon  at  least  ten  per  cent 
of  the  capital  stock  of  the  corporation;  , 

2.  If,  within  three  years  from  filing  the  articles  of  incor- 
poration, the  bridge,  wharf,  chute,  or  pier  is  not  completed; 

277 


§530  CIVIL   CODE.  [Div.I.Pt.IV. 

3.  If,  when  the  bridge,  wharf,  chute,  or  pier  of  the  cor- 
poration is  destroyed,  it  is  not  reconstructed  and  ready  for 
use  within  three  years  thereafter; 

4.  If  the  ferry  of  any  such  corporation  is  not  in  running 
order  within  three  months  after  authority  is  obtained  to  es- 
tablish it,  or  if  at  any  time  thereafter  it  ceases  for  a  like 
term   consecutively  to  perform  the  duties  imposed  by  law. 

History:  Enacted  March  21,  1872,  founded  upon  §  169  Act 
April  22,  1850,  Stats.  1850,  p.  373;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  373,  held  un- 
constitutional, see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.   1905,  p.   579. 

§530.  PRESIDENT  AND  SECRETARY  TO  MAKE 
ANNUAL  REPORT  TO  SUPERVISORS;  WHAT  RE- 
PORT TO  CONTAIN.  DAMAGES  FOR  FAILURE  TO 
REPORT.  The  president  and  secretary  of  every  bridge, 
ferry,  wharf,  chute,  or  pier  corporation  must  annually,  un- 
der oath,  report  to  the  board  of  supervisors,  or  other  gov- 
erning body  having  authority  in  that  behalf,  of  the  county 
in  which  the  articles  of  incorporation  are  filed: 

1.  The  cost  of  constructing  and  providing  all  necessary 
appendages  and  appurtenances  for  its  bridge,  ferry,  wharf, 
chute,  or  pier; 

2.  The  amount  of  all  moneys  expended  thereon,  since  its 
construction,   for   repairs   and   incidental  expenses; 

3.  The  amount  of  its  capital  stock,  how  much  paid  in,  and 
how   much   actually   expended   thereof; 

4.  The  amount  received  during  the  year  for  tolls,  and 
from  all  other  sources,  stating  each  separately; 

5.  The  amount  of  dividends  made,  and  the  indebtedness 
of  the  corporation,  specifying  for  what  it  was   incurred: 

6.  Such  other  facts  and  particulars  respecting  the  busi- 
ness of  the  corporation,  as  the  board  of  supervisors  or  other 
goverr»ing  body  having  authority  in  that  behalf  may  require. 

[Publication  of  report.]  This  report  the  president  and 
secretary   must   cause   to   be   published   for   four  weeks   in   a 

278 


Tit.VL]  TITLE  APPLIES  TO  WHOM.  §531 

daily  newspaper  published  nearest  the  bridge,  ferry,  wharf, 
pier,  or  chute,  if  required  by  order  of  the  board  of  super- 
visors or  other  governing  body  having  authority  in  that  be- 
half. A  failure  to  make  such  report  subjects  the  corporation 
to  a  penalty  of  two  hundred  dollars,  and  for  every  week 
permitted  to  elapse  after  such  failure  an  additional  penalty 
of  fifty  dollars,  payable  in  each  case  to  the  county  from 
which   the   authority   of  the   corporation   was   derived. 

[Duty  of  district  attorney  or  city  attorney.]  All  such  cases 
must  be  reported  by  the  board  of  supervisors,  or  other  gov- 
erning body  having  authority  in  that  behalf,  to  the  district 
attorney  or  city  attorney,  who  must  commence  an  action 
therefor. 

HLstory:  Enacted  March  21.  1872,  founded  upon  §§  170-173 
Act  April  22,  1850,  Stats.  1850,  p.  373;  amended  by  Code  Com- 
mission, Act  Marcli  6,  1901,  Stats,  and  Amdts.  1900-1,  p.  374, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  25,  1905,  Stats,  and  Amdts.   1905,  pp.   579-5S0. 

§  531.  THIS  TITLE  TO  APPLY  TO  NATURAL  PER- 
SONS ALIKE  WITH  CORPORATIONS.  When  a  bridge, 
ferry,  wharf,  chute,  or  pier  is  constructed,  operated,  or 
owned  by  a  natural  person,  this  title  is  applicable  to  such 
person  in  like  manner  as  it  is  applicable  to  corporations. 
History:      Enacted  March   21,   1872. 


279 


§§536,537  CIVIL  code.  [Div.I.Pt.IV. 


[The  former  Title  VII,  Including  §§  536-541,  was  repealed  by 
Act  March  20,  1905,  and  the  provisions  in  the  following  sections 
substituted  therefor.  Stats,  and  Amdts.  1905,  p.  491.  Prior 
legislation  upon  which  original  Title  VII  was  founded  will  be 
found  in  Stats.  1S50,  p.  347,  §152;  1857,  p.  117,  §2;  1S62,  p.  290, 
§  8.] 

TITLE  VII. 

TELEGRAPH  AND  TELEPHONE  CORPORATIONS. 

§  536.  May  use  right  of  way  along  waters,  roads,  and  high- 
ways. 

§  537.     Liability  for  damaging   telegraph   or  telephone  property. 

§  538.  Penalty  for  wilfully  or  maliciously  injuring  telegraph  or 
telephone   property. 

§  539.  Conditions  on  which  damage  to  subaqueous  cable  may 
be  recovered. 

§  540.     May   dispose   of   certain    rights. 

§  536.  MAY  USE  RIGHT  OF  WAY  ALONG  WATERS, 
ROADS,  AND  HIGHWAYS.  Telegraph  or  telephone  cor- 
porations may  construct  lines  of  telegraph  or  telephone 
lines  along  and  upon  any  public  road  or  highway,  along  or 
across  any  of  the  v\'aters  or  lands  within  this  state,  and  may 
erect  poles,  posts,  piers,  or  abutments  for  supporting  the  in- 
sulators, wires,  and  other  necessary  fixtures  of  their  lines,  in 
such  manner  and  at  such  points  as  not  to  incommode  the 
public  use  of  the  road  or  highway  or  interrupt  the  navigation 
of   the    waters. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
492;  see  introductory  note  to  this   title. 

§537.  LIABILITY  FOR  DAMAGING  TELEGRAPH 
OR  TELEPHONE  PROPERTY.  Any  person  who  injures 
or  destroys,  through  want  of  proper  care,  any  necessary  or 
useful  fixture  of  any  telegraph  or  telephone  corporation,  is 
liable  to  the  corporation  for  all  damages  sustained  thereby. 
Any  vessel  which,  by  dragging  its  anchor,  or  otherwise, 
breaks,  injures,  or  destroys  the  subaqueous  cable  of  a  tele- 

280 


Tit.VIL]  MALICIOUS   INJURY— PENALTY.  §§  538-540 

graph  or  telephone  corporation,  subjects  its  owner  to  the 
damages  hereinbefore   specified. 

History:  Enacted  March  20,  1905,  Stats,  and  Amcits.  1905,  p. 
492;  see  introductory  note  to  this  title. 

§538.  PENALTY  FOR  WILFULLY  OR  MALICIOUS- 
LY INJURING  TELEGRAPH  OR  TELEPHONE  PROP- 
ERTY. Any  person  who  wilfully  and  maliciously  does  anj-^ 
injury  to  any  telegraph  or  telephone  property,  mentioned  in 
the  preceding  section,  is  liable  to  the  corporation  for  one 
Inindred  times  the  amount  of  actual  damages  sustained 
thereby,  to  be  recovered  in  any  court  of  competent  juris- 
diction. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
492;  see  introductory  note  to  this  title. 

§539.  CONDITIONS  ON  WHICH  DAMAGES  TO 
SUBAQUEOUS    CABLE    MAY    BE    RECOVERED.     No 

telegraph  or  telephone  corporation  can  recover  damages  for 
the  breaking  or  injuring  of  any  subaqueous  telegraph  or 
telephone  cable,  unless  such  corporation  has  previously  erect- 
ed on  either  bank  of  the  waters  under  which  the  cable  is 
placed,  a  monument,  indicating  the  place  where  the  cable 
lies,  and  publishes  for  one  month  in  some  newspaper  most 
likely  to  give  notice  to  navigators,  a  notice  giving  a  descrip- 
tion and  the  purpose  of  the  monuments,  and  the  general 
course,  landings,  and  termini  of  the  cable. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
432;  see  introductory  note  to  tliis   title. 

§540.     MAY    DISPOSE    OF   CERTAIN    RIGHTS.     Any 

telegraph  or  telephone  corporation  may  at  any  time,  with 
the  consent  of  the  persons  holding  two-thirds  of  the  issued 
stock  of  the  corporation,  sell,  lease,  assign,  transfer,  or  con- 
vey any  rights,  privileges,  franchises,  or  property  of  the 
corporation,    except    its    corporate    franchise. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
492;  see  introductory  note  to  this  title. 

281 


§§548,549  CIVIL  CODE.  [Div.I,Pt.lV. 


TITLE  VIII. 

WATER   AND    CANAD   CORPORATIONS. 

§  548.     Corporation  may  obtain  contract  to  supply  city  or  town. 

§  549.  Must  furnish  water  for  family  use  upon  demand.  Rules 
may  be  prescribed. 

§  550.     Right  to  use  streets,   ways,  alleys,  and  roads    [repealed]. 

§  551.  Construction  of  canal,  etc.  Construction  and  repair  of 
bridges.  Supervisors  may  construct  bridges  and  re- 
cover therefor. 

§  552^     Right   of  purchasers   to   use  water   for  irrigating. 

§548.  CORPORATION  MAY  OBTAIN  CONTRACT 
TO  SUPPLY  CITY  OR  TOWN.  No  corporation  formed 
to  supply  any  city,  city  and  count}',  or  tow^n  with  water  must 
do  so  unless  previously  authorized  by  an  ordinance  of  the 
authorities  thereof,  or  unless  it  is  done  in  conformity  with 
a  contract  entered  into  between  the  city,  city  and  county, 
or  town  and  the  corporation. 

[Regulating  rates — Term  of  grant.]  Contracts  so  made 
are  valid  and  binding  in  law,  but  do  not  take  from  the  city, 
city  and  county,  or  town  the  right  to  regulate  the  rates  for 
water,  nor  must  any  exclusive  right  be  granted.  No  con- 
tract or  grant  must  be  made  for  a  term  exceeding  fifty  years. 

History:  Enacted  March  21,  1872,  founded  upon  §  3  Act  May 
3,   1852,   Stats.   1852,  p.   171. 

§549.  MUST  FURNISH  WATER  FOR  FAMILY  USE 
UPON  DEMAND.    RULES  MAY  BE  PRESCRIBED.     All 

corporations  formed  to  supply  water  to  cities  or  towns  must 
furnish  pure  fresh  water  to  the  inhabitants  thereof,  for  fam- 
ily uses,  so  long  as  the  supply  permits,  at  reasonable  rates 
and  without  distinction  of  persons,  upon  proper  demand 
therefor;  and  must  furnish  water  to  the  extent  of  their  means, 
in  case  of  fire  or  other  great  necessity,  free  of  charge.     The 

282 


Tit.VIII.]  CONSTRUCTION  OF  CANAL.  §§550,551 

board  of  supervisors,  or  the  proper  city  or  town  autliorities, 
may  prescribe  proper  rules  relating  to  the  delivery  of  water, 
not   inconsistent  with    the   laws   of   the   state. 

History:  Enacted  March  21,  187?,  founded  upon  §  4  Acl  April 
22,  1858,  Stats.  1858,  p.  219;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.  216;  amended  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  375,  held  unconstitutional,  see 
history,  §4  ante;  amendment  re-enacted  March  21,  1905,  Stats. 
and  Amdts.  1905,  p.  580. 

§550.  RIGHT  TO  USE  STREETS,  WAYS,  ALLEYS, 
AND   ROADS    [repealed.] 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  375,  held 
unconstitutional,  see  history,  §4  ante;  re-repealed  March  21, 
1905,  Stats,  and  Amdts.   1905,  p.  580. 


§551.  CONSTRUCTION  OF  CANAL,  ETC.  CON- 
STRUCTION AND  REPAIR  OF  BRIDGES.  SUPER- 
VISORS MAY  CONSTRUCT  BRIDGES  AND  RECOVER 
THEREFOR.  No  canal,  flume,  or  other  appliance  for  the 
conducting  of  water  must  be  so  laid,  constructed,  or  main- 
tained as  to  obstruct  any  public  highway;  and  every  person 
or  corporation  owning,  maintaining,  operating,  or  using  any 
such  canal,  flume,  or  appliance,  crossing  or  running  along 
any  public  highway,  must  construct,  maintain,  and  keep  in 
repair  such  bridges  across  the  same  as  may  be  necessary  to 
the  safe  and  convenient  use  of  such  highway  by  the  public; 
and  on  failure  so  to  do,  the  board  of  supervisors  of  the 
county,  after  seven  days'  notice  in  writing  to  said  person  or 
corporation,  may  construct  or  repair  such  bridge  or  bridges, 
and  recover  of  such  person  or  corporation  the  amount  of  the 
expenditure  made  in  so  doing. 

History:  Enacted  March  21,  1872,  founded  upon  §  4  Act  May 
14,  1862,  Stats.  1862,  p.  541;  amended  March  21,  1905,  Stats,  and 
Amdts.  1905,  pp.  580-581. 

283 


5  552  CIVIL  CODE.  [Div.I,Pt.IV. 

§552.  RIGHT  OF  PURCHASERS  TO  USE  WATER 
FOR  IRRIGATING.  Whenever  any  corporation,  organized 
under  the  laws  of  this  state,  furnishes  water  to  irrigate  lands 
which  said  corporation  has  sold,  the  right  to  the  flow  and  use 
of  said  water  is  and  shall  remain  a  perpetual  easement  to  the 
land  so  sold,  at  such  rates  and  terms  as  may  be  established 
by  said  corporation  in  pursuance  of  law. 

[Person  furnishing  water  entitled  to  continuance,  when.] 
And  whenever  any  person  who  is  cultivating  land  on  the 
line  and  within  the  flow  of  any  ditch  owned  by  such  corpora- 
tion, has  been  furnished  water  by  it,  with  which  to  irrigate 
his  land,  such  person  shall  be  entitled  to  the  continued  use 
of  said  water,  upon  the  same  terms  as  those  who  have  pur- 
chased their  land  of  the   corporation. 

History:  Enacted  April  3,  1876,  Code  Amdts.  1875-6,  p.  77. 
In  effect  April  3,  1S76. 


284 


Tit.IX.]  HOMESTEAD    CORPORATIONS.  §§557,558 


TITLE  IX. 

HOMESTEAD    CORPORATIONS. 

§  557.     Time  of  corporate   existence. 

§  558.  By-laws  must  specify  time  for  and  amount  of  payment 
of  instalments,  and  penalty  for  failure  to  pay.  By- 
laws  to   be   furnished   to   any    member   on    demand. 

§  559.  Advertisement  and  sale  of  delinquent  and  forfeited 
shares. 

§  560.     May  borrow  and  loan  funds,  how,  and  for  what  time. 

§  561.  Minor  children,  wards,  and  married  women  may  own 
stock. 

§  562.  Forfeiture  for  speculating  in  or  owning  lands  exceeding 
two   hundred  thousand  dollars. 

§  563.     When  corporation  is  terminated,  and  how. 

§  564.     Payment   of  premiums. 

§  565.     Annual   report   to  be  published. 

§  566.     Publication   in  certain  cases. 

§557.  TIME  OF  CORPORATE  EXISTENCE.  Cor- 
porations organized  for  the  purpose  of  acquiring  lands  in 
large  tracts,  paying  off  encumbrances  thereon,  improving  and 
subdividing  them  into  homestead  lots  or  parcels,  and  dis- 
tributing them  among  the  shareholders,  and  for  the  accumu- 
lation of  a  fund  for  such  purposes,  are  known  as  homestead 
corporations,  and  must  not  have  a  corporate  existence  for  a 
longer  period  than  ten  years. 

History:  Enacted  March  21.  1872,  founded  upon  §§1,  3,  Act 
May  20,  1861,  Stats.  1861,  p.  567;  §  1  Act  March  30,  1868,  Stats. 
1867-8,  p.   539. 

§558.  BY-LAWS  MUST  SPECIFY  TIME  FOR  AND 
AMOUNT  OF  PAYMENT  OF  INSTALMENTS,  AND 
PENALTY  FOR  FAILURE  TO  PAY.  BY-LAWS  TO 
BE    FURNISHED    TO    ANY    MEMBER    ON    DEMAND. 

Stich    corporations   mtist    specify   in   their   by-laws   the   times 
when   the  instalments   of   the   capital   stock  are  payable,   the 

285 


§§559,560  CIVIL  CODE.  [Div.I,Pt.IV. 

amount  tliereof,  and  the  fines,  penalties,  or  forfeitures  in- 
curred in  case  of  default.  A  printed  copy  of  the  articles  of 
incorporation  and  by-laws  must  be  furnished  to  any  share- 
holder  on    demand. 

History:     Enacted  March  21,   1872. 

§559.  ADVERTISEMENT  AND  SALE  OF  DELIN- 
QUENT AND  FORFEITED  SHARES.  Whenever  any 
shares  of  stock  are  declared  forfeited  by  resolution  of  the 
board  of  directors,  the  directors  may  advertise  the  same 
for  sale,  giving  the  name  of  the  subscriber  and  the  number 
of  shares,  by  notice  of  not  less  than  three  weeks,  published 
at  least  once  a  week  in  a  newspaper  of  general  circulation 
in  the  city,  town,  or  county  where  the  principal  place  of 
business  of  such  corporation  is  located.  Such  sale  must  be 
made  at  auction,  under  the  direction  of  the  secretary  of  the 
company.  The  corporation  may  be  a  bidder,  and  the  shares 
must  be  disposed  of  to  the  highest  bidder  for  cash.  No  de- 
fect, informality,  or  irregularity  in  the  proceedings  respecting 
the  sale  invalidates  it,  if  notice  is  given  as  herein  provided. 
After  the  sale  is  made  the  secretary  must,  on  receipt  of  the 
purchase  money,  transfer  to  the  purchaser  the  shares  sold, 
and  after  deducting  from  the  proceeds  of  such  sale  all  in- 
stalments then  due,  and  all  expenses  and  charges  of  sale, 
must  hold  the  residue  subject  to  the  order  of  the  delinquent 
subscriber. 

History:  Enacted  March  21,  1S72.  founded  upon  §  4  Act  May 
20  ,1861,  Stats.  1861,  p.  268,  as  amended  April  4,  1864,  Stats. 
11863-4,  p.  492,  as  amended  by  §  2  Act  March  30,  1868,  Stats. 
"1867-8,  p.   540. 

§560.  MAY  BORROW  AND  LOAN  FUNDS,  HOW, 
AND  FOR  WHAT  TIME.  Homestead  corporations  may 
borrow  nr^oney  for  the  purposes  of  the  corporation,  not  ex- 
ceeding at  any  one  time  one  fourth  of  the  aggregate  amount 
of  the    shares   or   parts   of   shares   actually  paid   in,   and    the 

286 


Tit.IX.]  MINOR  CHILDREN,  WARDS,  ETC.  §§561,562 

income  thereof;  no  greater  rate  of  interest  must  be  paid 
therefor  than  twelve  per  cent  per  annum.  For  the  purpose 
of  completing  the  purchase  of  lands  intended  to  be  divided 
and  distributed,  they  may  borrow  on  the  security  of  their 
shares  on  the  land  thus  purchased,  or  that  owned  by  the 
corporation  at  the  time  of  procuring  the  loan,  any  sum  of 
money  which,  together  with  the  interest  contracted  to  be- 
come due  thereon,  will  not  exceed  ninety  per  cent  of  the 
unpaid  amount  subscribed  bj^  the  shareholders;  but  no  loan 
must  be  made  to  the  corporation  for  a  term  extending  be- 
yond that  of  its  existence. 

History:      Enacted  March   21,   1872,  founded  upon   §  5  Act  May 

20,  1S61,  Stats.  1S61,  p.  569,  as  amended  Act  March  29.  1870, 
Stats.    1869-70,    p.    474. 

§561.  MINOR  CHILDREN,  WARDS,  AND  MARRIED 
WOMEN  MAY  OWN  STOCK.  Such  shares  of  stock  in 
homestead  corporations  as  may  be  acquired  by  children, 
the  cost  of  which,  and  the  deposits  and  assessments  on  which 
are  paid  from  the  personal  earnings  of  the  children,  or  with 
gifts  from  persons  other  than  their  male  parents,  may  be 
taken  and  held  for  them  by  their  parents  or  guardians.  Mar- 
ried women  may  hold  such  shares  as  they  acquire  with  their 
personal  earnings,  or  those  of  their  children,  voluntarily  be- 
stowed therefor,  or  from  property  bequeathed  or  given  to 
them  by  persons  other  than  their  husbands. 

History:  Enacted  March  21,  1872,  founded  upon  §  6  Act  May 
20,  1861,  Stats.   1861,  p.   567. 

§562.  FORFEITURE  FOR  SPECULATING  IN  OR 
OWNING  LANDS  EXCEEDING  TWO  HUNDRED 
THOUSAND  DOLLARS.  Homestead  corporations  must 
not  purchase  and  sell,  or  otherwise  acquire  and  dispose  of 
real  property,  or  any  interest  therein,  or  any  personal  prop- 
erty, for  the  sole  purpose  of  speculation  or  profit.  Nor 
must  any  such  corporation  at  any  one  time  own  or  hold,  in 

287 


§563  CIVIL  CODE.  [Div.I.Pt.IV. 

trust  or  otherwise,  for  its  purposes,  real  property,  or  any 
interest  tlierein,  which  in  the  aggregate  exceeds  in  cash  value 
the  sum  of  two  hundred  thousand  dollars. 

[Penalty  for  violation.]  For  any  violation  of  the  pro- 
visions of  this  section,  corporations  forfeit  their  corporate 
rights  and  powers.  On  the  application  of  any  citizen  to  a 
court  of  competent  jurisdiction  such  forfeiture  may  be  ad- 
judged, and  the  judgment  carries  with  it  costs  of  the  pro- 
ceedings. 

History:     Enacted  March  21,   1872. 

§563.  WHEN  CORPORATION  IS  TERMINATED, 
AND  HOW.  Except  for  the  purpose  of  winding  up  and 
settling  its  affairs,  every  homestead  corporation  must  ter- 
minate at  the  expiration  of  the  time  fixed  for  its  existence 
in  the  articles  of  incorporation,  or  when  dissolved  as  pro- 
vided  in   this   part. 

No  dividend  of  funds  must  be  made  on  termination  of  its 
corporate  existence,  until  its  debts  and  liabilities  are  paid; 
and  upon  the  linal  settlement  of  the  affairs  of  the  corpora- 
tion, or  upon  the  termination  of  its  corporate  existence,  the 
directors,  in  such  manner  as  they  may  determine, 

Must  divide  its  property  among  its  shareholders  in  pro- 
portion to  their  respective  interests,  or,  upon  the  application 
of  a  majority  in  interest  of  the  stockholders,  must  sell  and 
dispose  of  any  or  all  of  the  real  estate  of  the  corporation 
upon  such  terms  as  may  be  most  conducive  to  the  interests 
of  all  the  stockholders,  and  must  convey  the  same  to  the 
purchaser,  and  distribute  the  proceeds  among  the  share- 
holders, or  may  at  any  time,  when  best  for  the  interests  of 
all  the  shareholders,  cause  the  lands  of  the  corporation  to 
be  subdivided  into  lots  and  distributed,  by  sale  for  premiums, 
at  auction  or  otherwise,  among  the  shareholders. 

History:  Enacted  March  21,  1872,  founded  upon  §  7  Act  May 
20,  1861,  Stats.  1861,  p.  569;  §  1  Act  Maroh  29,  1870,  Stats.  1S69-70, 
p.   474. 

288 


Tit. IX.]  PREMIUM— ANNUAL  REPORT.  §§564-566 

§  564.  PAYMENT  OF  PREMIUMS.  Such  premiums  on 
lots  may  be  made  payable  at  the  time  they  are  bid  off,  and, 
if  not  so  paid  on  any  lot  or  land,  the  directors  may  imme- 
diately offer  the  same  for  sale  again.  If  made  payable  at  a 
future  day,  and  any  shareholder  fails  to  pay  his  bid  on  the 
day  the  same  is  made  due  and  payable,  the  directors  may 
advertise  and  sell  the  shares  of  stock  representing  the  lots 
of  land  on  which  the  premiums  remain  unpaid,  in  the  man- 
ner provided  in  the  by-laws  for  the  sale  of  shares  on  account 
of  delinquent  instalments  and  premiums. 

History:  Enacted  March  21.  1872,  founded  upon  §  1  Act 
March   29,   1870,   Stats.    1869-70,  p.   474. 

§565.     ANNUAL  REPORT  TO  BE  PUBLISHED.     The 

actual  financial  condition  of  all  liomestead  corporations  must, 
by  the  directors  thereof,  be  published  annually  in  the  [a] 
newspaper  published  at  the  principal  place  of  business  of  the 
corporation,  for  four  weeks,  if  published  in  a  weekly,  and 
two  weeks,  if  published  in  a  daily.  The  statement  must  be 
made  up  to  the  end  of  each  year,  and  must  be  verified  by 
the  oath  of  the  president  and  secretary,  showing  the  items 
of   property    and    liabilities. 

History:  Enacted  March  21,  1872,  founded  upon  §  8  Act  May 
20,  1861,  Stats.   1861,  p.   569. 

§566.     PUBLICATION   IN    CERTAIN    CASES.     In    any 

case  in  which  a  publication  is  required,  and  no  newspaper 
is  published  at  the  principal  place  of  business,  the  publica- 
tion may  be  made  in  a  paper  published  in  an  adjoining 
county. 

History:     Enacted  March  21,   1872. 


289 


§571  CIVIL    CODE.  [Div.I,Pt.IV. 


TITLE  X. 
SAVINGS    AND    LOAN    CORPORATIONS. 

§  571.     May  loan  money,  on  what  terms,  how,  and  to  whom,  and 

how   long. 
§  572.     Capital  stock,  and  rights  and  privileges  thereof. 
§  573.     No   dividends,    except   from   .surplus   profits.      To   contract 

no    liability,    except   for    deposits. 
§  574.     Property    wliich    may    be    owned    by    corporation,      What 

may  not  hold,   etc. 
§  575.     Married  women  and  minors  may  own  stoclc  in  their  own 

right. 
§  576.     May    issue    transferable    certificates    of    deposit.      Special 

certificates. 
§  577.     To  provide  a  reserve  fund  for  the  payment  of  losses. 
§  578.     Prohibition    on    director    and    officer,    and    what    vacates 

office. 
§  579.     Definition   of  phrase   "create   debts." 

§  580.     Banks,   amount   of   capital   stock    required    [repealed]. 
§  581.     Restrictions  on  savings  banks. 
§  582.     True  name  of  persons  engaged  in  banking  business  must 

be  shown. 
§  583.     Dividends.     Surplus   funds. 

§  583a.  Capital  actually  paid   up  must  be  published.  • 
§  583b.  Biennial   report  to  bank  commissioners  of   unclaimed   de- 
posits. 

§571.  MAY  LOAN  MONEY,  ON  WHAT  TERMS, 
HOW,  AND  TO  WHOM,  AND  HOW  LONG.  Corpora- 
tions organized  for  the  purpose  of  accumulating  and  loaning 
the  funds  of  their  members,  stockholders,  and  depositors, 
may  loan  and  invest  the  fimds  thereof,  receive  deposits  of 
money,  loan,  invest,  and  collect  the  same,  vvrith  interest,  and 
may    repay    depositors    with    or    without    interest.      No    such 

290 


Tit.X.]  CAPITAL    STOCK— DIVIDENDS.  §§572,573 

corporation  must  loan  money,  except  on  adequate  security 
on  real  or  personal  property,  and  such  loan  must  not  be  for 
a  longer  period   than   ten  years. 

History:  Enacted  March  21,  1S72,  founded  upon  §§  4,  5  Act 
April  11,  1862,  Stats.  1862,  p.  199,  as  amended  Act  April  12, 
1864,  Stats.  1863-4,  p.  158;  amended  March  15,  1901,  Stats,  and 
Amdts.    1900-1,   p.    295.      In   force   March    15,    1901. 

§  572.  CAPITAL  STOCK,  AND  RIGHTS  AND  PRIVI- 
LEGES THEREOF.  When  savings  and  loan  corporations 
have  a  capital  stock  specified  in  their  articles  of  incorpora- 
tion, certificates  of  the  ownership  of  shares  may  be  issued; 
and  the  rights  and  privileges  to  be  accorded  to,  and  the 
obligations  to  be  imposed  upon,  such  capital  stock,  as  dis- 
tinct from  those  of  depositors,  must  be  fixed  and  defined, 
either  in  the  articles  of  incorporation  or  in   the  by-lav^^s. 

History:  Enacted  March  21,  1872,  founded  upon  §  17  Act  April 
11,    1862,    Stats.    1862,    p.    203. 

§573.  NO  DIVIDENDS,  EXCEPT  FROM  SURPLUS 
PROFITS.  TO  CONTRACT  NO  LIABILITY,  EXCEPT 
FOR  DEPOSITS.  The  directors  of  savings  and  loan  cor- 
porations may,  at  such  times  and  in  such  manner  as  the  by- 
laws prescribe,  declare  and  pay  dividends  of  so  much  of  the 
profits  of  the  corporation,  and  of  the  interest  arising  from 
the  capital  stock  and  deposits,  as  may  be  appropriated  for 
that  purpose  under  the  by-laws  or  under  their  agreements 
with   depositors. 

The  directors  must  not  contract  any  debt  or  liability 
against  the  corporation  for  any  purpose  whatever,  except  for 
deposits.  The  capital  stock  and  the  assets  of  the  corpora- 
tion are  a  security  to  depositors  and  stockholders,  depositors 
having  the  priority  of  security  over  the  stockholders,  but 
the  by-laws  may  provide  that  the  same  security  shall  ex- 
tend to  deposits  made  by  stockholders. 

History:  Enacted  March  21.  1872,  founded  upon  §  10,  Act 
April  11,  1862,  Stats.  1862,  p.  201,  as  amended  Act  March  4,  1870, 
Stats.   1869-70,  p.  130. 

291 


§574  CIVIL    CODE.  [Div.I.Pt.IV. 

§574.  PROPERTY  WHICH  MAY  BE  OWNED  BY 
CORPORATION.       WHAT     MAY     NOT     HOLD,     ETC. 

Savings  and  loan  corporations  may  purchase,  hold  and  con- 
vey real  and  personal  property  as  foUow^s: 

1.  The  lot  and  building  in  which  the  business  of  the  cor- 
poration is  carried  on,  the  cost  of  w^hich  must  not  exceed  one 
hundred  thousand  dollars;  except,  on  a  vote  of  tw^o-thirds 
of  the  stockholders  the  corporation  may  increase  the  sum 
to  an  amount  not  exceeding  two  hundred  and  fifty  thousand 
dollars; 

2.  Such  as  may  have  been  mortgaged,  pledged  or  conveyed 
to  it  in  trust,  for  its  benefit  in  good  faith,  for  money  loaned 
in  pursuance  of  the  regular  business  of  the  corporation; 

3.  Such  as  may  have  been  purchased  at  sales  under 
pledges,  mortgages  or  deeds  of  trust  made  for  its  benefit, 
for  money  so  loaned,  and  such  as  may  be  conveyed  to  it  by 
borrowers  in  satisfaction  and  discharge  of  loans  made 
thereon; 

4.  No  such  corporation  must  purchase,  hold  or  convey  real 
estate  in  any  other  case  or  for  any  other  purpose;  and  all 
real  estate  described  in  subdivision  three  of  this  section  must 
be  sold  by  the  corporation  within  ten  years  after  the  title 
thereto  is  vested  in  it  by  purchase  or  otherwise; 

5.  No  such  corporation  must  purchase,  own,  or  sell  personal 
property,  except  such  as  may  be  requisite  for  its  immediate 
accommodation  for  the  convenient  transaction  of  its  busi- 
ness, mortgages  on  real  estate,  bonds,  securities  or  evidences 
of  indebtedness,  public  or  private,  gold  and  silver  bullion 
and  United  States  mint  certificates  of  ascertained  value  and 
evidences  of  debt  issued  by  the  United  States; 

6.  No  such  corporation  must  purchase,  hold  or  convey 
bonds,  securities  or  evidences  of  indebtedness,  public  or  pri- 
vate, except  bonds  of  the  United  States,  of  the  state  of  Cali- 
fornia, and  of  the  counties,  cities,  or  cities  and  counties,  or 
towns,  or  school  districts  of  the  state  of  California,  or  bonds 
of  railroad  or   street-railroad   corporations  owning  property 

292 


Tit.X.]  MARRIED  WOMEN  AND  MINORS.  §§  575,  576 

and  having  their  principal  place  of  business  in  the  state  of 
California,  unless  such  corporation  lias  a  capital  stock  or 
reserve  fund  paid  in  of  not  less  than  one  hundred  thousand 
dollars. 

Historj-:  Enacted  March  21,  1872,  founded  upon  §  13  Act  April 
11,  1S62,  Stats.  1862,  p.  202,  as  amended  by  Act  March  12,  18C4, 
Stats.  1863-4,  p.  158,  and  by  Act  March  31,  1866,  Stats.  1865-6, 
p.  626;  amended  March  30,  1874,  Code  Amdts.  1873-4,  p.  273; 
amended  by  Code  Commission,  Act  March  16,  1901,  Stats,  anrt 
Amdts.  1900-1,  p.  375,  lield  unconstitutional,  see  history,  §  4 
ante;  amended  March  23,  1901,  Stats,  and  Amdts.  1900-],  p.  659. 
In  force  March  23.  1901. 


§  575.  MARRIED  WOMEN  AND  MINORS  MAY  OWN 
STOCK  IN  THEIR  OWN  RIGHT.  Married  women  and 
minors  may,  in  their  own  right,  make  and  draw  deposits 
and   draw   dividends,   and  give   valid  receipts   therefor. 

HLstory:  Enacted  March  21,  1872.  founded  upon  §§  14,  15  Act 
April  11,  1862,  Stats.  1862,  p.  202,  as  amended  Act  March  12, 
1864,  Stats.  1863-4,  p.  160,  and  amendatory  Act  March  4,  1870, 
Stats.   1869-70,  p.   132. 


§576.     MAY       ISSUE      TRANSFERABLE       CERTIFI- 
CATES     OF      DEPOSIT.      SPECIAL      CERTIFICATES. 

Savings  and  loan  corporations  may  issue  general  certificates 
of  deposit,  which  are  transferable,  as  in  other  cases,  by  in- 
dorsement and  delivery;  may  issue,  when  requested  by  the 
depositor,  special  certificates,  acknowledging  the  deposit  by 
the  person  therein  named  of  a  specified  sum  of  money,  and 
expressly  providing  on  the  face  of  such  certificate  that  the 
sum  so  deposited  and  therein  named  may  be  transferred  only 
on  the  books  of  the  corporation;  payment  thereafter 
made  by  the  corporation  to  the  depositor  named  in  sucli 
certificate,  or  to  his  assignee  named  upon  the  books  of  tlie 
corporation,  or,  in  case  of  death,  to  the  legal  representative 

293 


§§577,578  CIVIL  code.  [Div.I.Pt.IV. 

of  such  person,  of  the  sum  for  which  such  special  certificate 
was  issued,  discharges  the  corporation  from  all  further  lia- 
bility on  account  of  the  money  so  paid. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  March 
28,   1868,   Stats.   1867-S,  p.   459. 

§577.  TO  PROVIDE  RESERVE  FUND  FOR  THE 
PAYMENT  OF  LOSSES.  Savings  and  loan  corporations 
may  prescribe  by  their  by-laws  the  time  and  conditions  on 
which  repayment  is  to  be  made  to  depositors;  but  whenever 
there  is  any  call  by  depositors  for  repayment  of  a  greater 
amount  than  the  corporation  may  have  disposable  for  that 
purpose,  the  directors  or  officers  thereof  must  not  make  any 
new  loans  or  investments  of  the  funds  of  the  depositors,  or 
of  the  earnings  thereof,  until  such  excess  of  call  has  ceased. 

[Corporations  without  capital — Reserve  fund.]  The  direc- 
tors of  any  such  corporation  having  no  capital  stock  must 
retain,  on  each  dividend  day,  at  least  five  per  cent  of  the 
net  profits  of  the  corporation,  to  constitute  a  reserve  fund, 
which  must  be  invested  in  the  same  manner  as  other  funds 
of  the  corporation,  and  must  be  used  toward  paying  any 
losses  which  the  corporation  may  sustain  in  pursuing  its  law- 
ful  business, 

[Excess  of  reserve  fund — Disposition  on  dissolution.] 
The  corporation  may  provide  by  its  by-laws  for  the  dis- 
posal of  any  excess  in  the  reserve  fund  over  one  hundred 
thousand  dollars,  and  the  final  disposal,  upon  the  dissolution 
of  the  corporation,  of  the  reserve  fund,  or  of  the  remainder 
thereof,   after  payment  of  losses. 

History:  Enacted  March  21,  1872,  founded  upon  §  11  Act  April 
11,  1862,  Stats.  1862,  p.  201;  Acts  March  31  and  April  4,  1870, 
Stats.   1869-70,  p.   .523. 

§578.  PROHIBITION  ON  DIRECTOR  AND  OFFI- 
CER, AND  WHAT  VACATES  OFFICE.  No  director  or 
officer   of   any    savings    and    loan    corporation    must,    directly 

294 


Tit.X.]  DEFINITION  OF  TERMS — RESTRICTION.  §§  579,581 

or  indirectly,  for  himself  or  as  the  partner  or  agent  of  oth- 
ers, borrow  any  of  the  deposits  or  other  funds  of  such  cor- 
poration, nor  must  he  become  an  indorser  or  surety  for 
loans  to  others,  nor  in  any  manner  be  an  obligor  for  moneys 
borrowed  of  or  loaned  by  such  corporation.  The  office  of 
any  director  or  officer  who  acts  in  contravention  of  the  pro- 
visions of  this  section  immediately  thereupon  becomes  va- 
cant. 

History:      Enacted  March   21,   1S72. 

§  579.  DEFINITION  OF  PHRASE  "CREATE 
DEBTS."  Receiving  deposits,  issuing  certificates  of  de- 
posit, checks,  and  bills  of  exchange  and  the  like,  in  the  trans- 
action of  the  business  of  savings  and  loan  corporations,  must 
not  be  construed  to  be  the  creation  of  debts  within  the 
meaning  of  the  phrase  "create  debts,"  in   section  309. 

History:     Enacted  March  21,    1S72. 

§580.  BANKS,  AMOUNT  OF  CAPITAL  STOCK  RE- 
QUIRED   [repealed]. 

History:  Original  section  enacted  by  Code  Commission,  Act 
"March  16.  1901,  Stats,  and  Amdts.  1900-1,  p.  376,  held  unconsti- 
tutional, see  history,  §  69  ante;  an  entirely  different  provision 
with  sectional  number  enacted  March  5,  1903,  Stats,  and  Amdts. 
1903,  p.  87;  re-enacted  almost  verbatim  March  20,  1905.  Stats, 
and  Amdts.  1905,  p.  507;  repealed  March  18,  1907,  Stats,  and 
Amdts.    1907,   p.    576,   Kerr's   Stats,    and   Amdts.    1906-7,   p.    415. 

§581.     RESTRICTIONS     ON     SAVINGS     BANKS.     No 

savings  bank  shall  lend  to  exceed  sixty  per  cent  of  the  market 
value  of  any  piece  of  real  estate  to  be  taken  as  security,  ex- 
cept for  the  purpose  of  facilitating  the  sale  of  property 
owned  by  the  corporation.  And  it  shall  be  unlawful  for  any 
savings  and  loan  society,  or  savings  bank,  to  purchase,  in- 
vest, or  loan  its  capital,  or  the  money  of  its  depositors,  or 
any  part  of  either,  in   mining  shares  or  stocks.     Any  presi- 

295 


§§582,583  CIVIL  code.  [Div.I.Pt.IV. 

dent  or  managing  officer  who  knowingly  consents  to  a  vio- 
lation of  the  above  provision  shall  be  deemed  guilty  of  a 
felony. 

History:      Enacted   March    21,    1903,    Stats,    and   Amdts.    1903,  p. 
352.     In  force  March  21,  1903. 


§582.  TRUE  NAMES  OF  PERSONS  ENGAGED  IN 
BANKING  BUSINESS  MUST  BE  SHOWN.  Every  per- 
son or  number  of  persons  not  being  incorporated,  engaged  in 
the  business  of  banking,  or  publicly  receiving  money  on  de- 
posit must  conduct  such  business  under  a  name  which  shows 
the  true  names  of  all  persons  engaged  therein,  unless  such 
person  or  persons  have  complied  with  the  provisions  of 
article  seven  of  chapter  two  of  title  ten  of  part  four  of  di- 
vision  third  of   said   Civil   Code. 

[Penalty  for  violation.]  Every  person  violating  any  of 
the  provisions  of  this  section  is  guilty  of  a  misdemeanor,  and 
is  punishable  by  imprisonment  in  the  county  jail  for  not 
less  than  ninety  days  nor  more  than  six  months,  or  by  fine 
of  not  less  than  one  hundred  dollars  nor  more  than  five  hun- 
dred dollars,  or  by  both  such  fine  and  imprisonment. 

History:  Enacted  March  21,  1903,  Stats,  and  Amdts.  1903,  p. 
352.     In  force  March  21,  1903. 

§583.  DIVIDENDS.  SURPLUS  FUNDS.  The  direc- 
tors of  any  savings  bank,  bank,  or  banking  corporation  hav- 
ing a  capital  stock,  may  semi-annually  declare  a  dividend  of 
so  much  of  the  net  profits  of  the  stockholders  as  they  shall 
judge  expedient;  but  every  such  corporation  shall,  before  the 
declaration  of  such  dividend,  carry  at  least  one  tenth  (1-10) 
part  of  the  net  profits  of  the  stockholders  for  the  preceding 
half  year  to  its  surplus  or  reserve  fund  until  the  same  shall 
amount  to  twenty-five  per  centum  of  its  paid-up  capital 
stock.  But  the  whole  or  any  part  of  such  surplus  or  reserve 
fund,  if  held  as  the  exclusive  property  of  stockholders,  may 

296 


Tit.X.]  CAPITAL  PAID  IN— PUBLISHING.     §§  583a,  583b 

at  any  time  be  converted  into  paid-up  capital  stock,  in  which 
event  such  surplus  or  reserve  fund  shall  be  restored  in  man- 
ner as  above  provided  until  it  amounts  to  twenty-five  per 
centum  of  the  aggregate  paid-up  capital  stock.  A  larger  sur- 
plus or  reserve  fund  may  be  created,  and  nothing  herein 
contained  shall  be  construed  as  prohibitory  thereof. 

History:  Enacted  March  21,  1903,  Stats,  and  Amdts.  1903.  p. 
353.     In  effect  March  21,   1903. 

§583a.  CAPITAL  ACTUALLY  PAID  UP  MUST  BE 
PUBLISHED.  No  banker,  nor  ofificer  of  any  bank  or  cor- 
poration doing  a  banking  business,  shall  advertise  in  any 
manner,  or  publish  any  statement  of  the  capital  stock  au- 
thorized or  subscribed,  unless  he  advertise  and  publish  in 
connection  therewith,  the  amount  of  capital  actually  paid  up. 
Any  officer,  or  the  officers  of  any  bank  or  corporation  do- 
ing a  banking  business,  advertising  in  any  manner,  or  pub- 
lishing, a  statement  of  the  capital  stock  of  such  bank  or 
banking  corporation,  authorized  or  subscribed,  without  the 
statement  in  connection  therewith  of  the  stock  actually  paid 
up,   shall  be   guilty  of  a  misdemeanor. 

History:  Enacted  March  21,  1903,  Stats,  and  Amdts.  1903,  p. 
353.     In  effect  March  SI,   1903. 

§583b.  BIENNIAL  REPORT  TO  BANK  COMMIS- 
SIONERS OF  UNCLAIMED  DEPOSITS.  The  president 
of  every  savings  bank,  savings  and  loan  society,  and  every 
other  bank,  depository,  society,  or  institution  in  which  de- 
posits of  money  are  made,  whether  any  interest  or  dividend 
is  paid,  or  agreed  to  be  paid,  thereon  or  not,  must,  within 
fifteen  days  after  the  first  day  of  January  of  every  odd-num- 
bered year,  return  to  the  board  of  bank  commissioners  a 
sworn  statement  showing  the  amount  placed  to  his  credit, 
the  last  known  place  of  residence  or  post-office  address,  and 
the  fact  of  death,  if  known  to  such  president,  of  every  de- 
positor who  has   not  made  a   deposit  therein   or   withdrawn 

297 


§583b  CIVIL  CODE.  [Div.I.Pt.IV. 

therefrom  any  part  of  his  deposit,  or  any  part  of  the  interest 
or  dividends  thereon,  for  a  period  of  more  than  ten  years 
next  preceding.  Such  president  must  give  notice  of  these 
deposits  in  one  or  more  newspapers  published  in  or  nearest 
the  town,  city,  or  city  and  county  where  such  bank,  society, 
or  other  institution  is  situated  or  has  its  principal  place  of 
business,  at  least  once  a  week  for  four  successive  weeks,  the 
cost  of  such  publication  to  be  paid  pro  rata  out  of  such  un- 
claimed deposits.  This  section  does  not  apply  to  any  deposit 
made  by  or  in  the  name  of  a  person  known  to  the  president 
to  be  living,  or  which,  with  the  accumulation  thereon,  is  less 
than  fifty  dollars.  The  board  of  bank  commissioners  must 
incorporate  in  their  subsequent  report  each  return  made  to 
them  as  provided  in  this  section.  Any  president  of  any  of 
the  institutions  mentioned  in  this  section  who  neglects  or 
refuses  to  make  the  sworn  statement  required  thereby  is 
guilty  of  a  misdemeanor. 

HLstorj-:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp. 
580-581. 

The  act  contains  two  repealing  sections  as  follows:  §  2.  The 
act  entitled  "An  act  to  compel  savings  banks  to  publish  a 
sworn  statement  of  all  unclaimed  deposits,"  approved  March  23, 
1893,  is  hereby  repeialed.  §  3.  The  act  entitled  "An  act  to  compel 
all  depositories  of  money  and  commercial  banks  to  publish  a 
sworn  statement  of  all  unclaimed  deposits,"  approved  February 
25,   1897,   is   hereby  repealed. 


298 


Tit. XL]  MINING  CORPORATIONS.  §586 


[The  original  Title  XI,  embracing  §§  584-587,  and  each  and 
every  section  thereof,  was  repealed  March  21,  1905,  and  a  new- 
Title  XI  substituted  therefor,  embracing  §§  586-590,  Stats,  and 
Amdts.  1905,  pp.  584-587,  and  is  substantially  the  codification  of 
Act  1880  (Stats.  1880,  p.  134),  as  amended  by  Act  1S97  (Stats, 
and  Amdts.  1897,  p.  38),  and  amendments  proposed  by  Code 
Commission,  Act  March  16,  1901  (Stats,  and  Amdts.  1900-1,  p. 
377),  which  latter  was  held  unconstitutional,  see  history,  §  4 
ante.] 

TITLE  XL 

MINING  CORPORATIONS. 

§  586.     Transfer  agencies.      [May  establish  in  other  states.] 

§  587.  Stock  Issued  at  transfer  agencies.  [Surrender  of  cer- 
tificate.] 

§  587a.  Consolidation  of  mining  corporations.  [Written  consent 
of   stockholders.] 

§  588.  Books  and  balance-sheet  to  be  kept  by  secretary.  Stock- 
holders'  right  to   inspect. 

§  589.  Right  of  stockholders  to  visit  mine  with  expert.  [Duty 
of   superintendent.] 

§  590.  Liability  of  presidents  and  directors.  [Refusal  to  per- 
mit  examination;   damages.] 

§586.  TRANSFER  AGENCIES.  [MAY  ESTABLISH 
IN  OTHER  STATES.]  Any  corijoration  organized  in  this 
state  for  the  purpose  of  mining  or  carrying  on  mining  opera- 
tions in  or  without  this  state,  may  establish  and  maintain 
agencies  in  other  states  of  the  United  States,  for  the  trans- 
fer and  issuing  of  their  stock;  and  a  transfer  or  issue  of  the 
same  at  any  such  transfer  agency,  in  accordance  with  the 
provisions  of  its  by-laws,  is  valid  and  binding  as  fully  and 
effectually  for  all  purposes  as  if  made  upon  the  books  of 
such  corporation  at  its  principal  office  within  this  state.  The 
agencies  must  be  governed  by  the  by-laws  and  the  directors 
of  the  corporation. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
pp.  584-585;  see  introductory  note  to  this  title. 

299 


§§587, 587a  civil  code.  [Div.I.Pt.IV. 

§587.  STOCK  ISSUED  AT  TRANSFER  AGENCIES. 
[SURRENDER  OF  CERTIFICATE.]  All  stock  of  any 
sucli  corporation,  issued  at  a  transfer  agency,  must  be  signed 
by  the  president  and  secretary  of  the  corporation,  and 
countersigned  at  the  time  of  its  issue  by  the  agent  having 
charge  of  the  transfer  agency.  No  stock  must  be  issued  at 
a  transfer  agency  unless  the  certificate  of  stock,  in  lieu  of 
which  the  same  is  issued,  is  at  the  time  surrendered  for 
cancelation. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    5S5;    see   introductory  note    to    this   title. 

§  587a.  CONSOLIDATION  OF  MINING  CORPORA- 
TIONS. [WRITTEN  CONSENT  OF  STOCKHOLD- 
ERS.] It  is  lawful  for  two  or  more  corporations  formed, 
or  that  may  hereafter  be  formed,  under  the  laws  of  this 
state,  for  mining  purposes,  which  own  or  possess  mining 
claims  or  lands  adjoining  each  other,  or  lying  in  the  same 
vicinity,  to  consolidate  their  capital  stock,  debts,  property, 
assets,  and  franchises,  in  such  manner  and  upon  such  terms 
as  may  be  agreed  upon  by  the  respective  boards  of  directors 
or  trustees  of  such  corporations  so  desiring  to  consolidate 
their   interests;    but 

No  such  consolidation  must  take  place  without  the  writ- 
ten consent  of  the  stockholders  representing  two  thirds  of 
the  capital  stock  of  each  corporation,  and  no  such  consoli- 
dation can,  in  any  way,  relieve  such  corporations,  or  the 
stockholders  thereof,  from  any  and  all  just  liabilities;  and  in 
case  of  such  consolidation, 

Due  notice  of  the  same  must  be  given,  by  advertising,  for 
one  month,  in  at  least  one  newspaper  in  the  county  where  the 
said  mining  property  is  situated,  if  there  is  one  published 
therein,  and  also  in  one  newspaper  published  in  the  county 
where  the -principal  place  of  business  of  any  of  said  cor- 
poration is. 

[Certificate  of  consolidation — Filed,  where.]  And  when 
the    consolidation    is    completed,    a    certificate    thereof,    con- 

300 


Tit. XL]  CONSOLIDATION— CERTIFICATE  OF.  §  588 

taining  the  manner  and  terms  of  such  consolidation,  must 
be  filed  in  the  office  of  the  county  clerk  of  the  county  in 
which  the  original  certificate  of  incorporation  of  each  of 
said  corporations  is  filed,  and  a  copy  thereof  must  be  filed 
in   the  office  of  the   secretary  of  state. 

[Same — To  be  signed  by  boards — Calling  meeting  of  stock- 
holders— Notice.]  Such  certificate  must  be  signed  by  a  ma- 
jority of  each  board  of  trustees  or  directors  of  the  original 
corporations,  and  it  is  their  duty  to  call,  within  thirty  days 
after  the  filing  of  such  certificate,  a  meeting  of  the  stock- 
holders of  all  of  said  corporations  so  consolidated,  to  elect 
a  board  of  trustees  or  directors  for  the  consolidated  corpora- 
tion, for  the  year  thence  next  ensuing;  and  to  cause  notice 
of  the  time  and  place  fixed  for  such  meeting  to  be  mailed 
to  each  stockholder  of  each  of  such  corporations  at  his  last 
known  place  of  residence  or  business  at  least  ten  days  be- 
fore the  time  fixed  for  such  meeting.  The  said  certificate 
must  also  contain  all  the  requirements  prescribed  by  sec- 
tion two  hundred  and  ninety. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdt.s.  190.^. 
p.    585;    see   introductory  note    to    this   title. 

§588.  BOOKS  AND  BALANCE-SHEET  TO  BE  KEPT 
BY  SECRETARY.  STOCKHOLDERS'  RIGHT  TO  IN- 
SPECT. It  is  the  duty  of  the  secretary  of  every  corpora- 
tion formed  for.  the  purpose  of  mining,  or  conducting  min- 
ing in  California,  whether  such  corporation  be  formed  and 
organized  under  the  laws  of  the  state  of  California  or  of 
any  other  state,  territory,  or  foreign  country,  to  keep  at  some 
place  within  the  state  of  California  an  office  and  in  such  office 
to  keep  a  complete  set  of  books  showing  all  receipts  and  ex- 
penditures of  such  corporation,  the  sources  of  such  receipts, 
and  the  objects  of  such  expenditures,  and  also  all  transfers 
of  stock.  All  books  and  papers  must,  at  all  times  during 
business  hours,  be  open  to  the  inspection  of  any  stockholder. 
He  is  entitled  to  be  accompanied  by  an  expert,  and  to  make 
copies  or  extracts  from  any  such  books  or  papers. 

301 


§588  CIVIL   CODE.  [Div.I,Pt.IV. 

[Stockholder  may  examine  mining  property.]  He  may,  at 
reasonable  hours,  examine  such  mining  property,  accom- 
panied by  an  expert,  take  samples,  and  make  such  other  ex- 
amination as  he  may  deem  necessary. 

[Monthly  balance-sheet — Verified  by   oath,   of   whom.]     It 

is  the  duty  of  the  directors,  on  the  second  Monday  of  each 
and  every  month,  to  cause  to  be  made  an  itemized  account 
or  balance-sheet  for  the  previous  month,  embracing  a  full 
and  complete  stateinent  of  all  disbursements  and  receipts, 
showing  from  what  sources  such  receipts  were  derived,  and 
to  whom  and  for  what  object  or  purpose  such  disbursements 
or  payments  were  made;  also  all  indebtedness  or  liabilities 
incurred  or  existing  at  the  time,  and  for  what  the  same  were 
incurred,  and  the  balance  of  money,  if  any,  on  hand.  Such 
account  or  balance-sheet  must  be  verified  under  oath  by  the 
president  and  secretary,  and  posted  in  some  conspicuous 
place  in  the  office  of  the  company. 

[Superintendent  to  file  monthly  account;  what  must  show.] 
It  is  the  duty  of  the  superintendent,  on  the  first  Monday  of 
each  month,  to  file  with  the  secretary  an  itemized  account, 
verified  under  oath,  showing  all  receipts  and  disbursements 
made  by  him  for  the  previous  month,  and  for  what  said  dis- 
bursements were  made.  Such  account  must  also  contain  a 
verified  statement  showing  the  number  of  men  employed 
under  him,  and  for  what  purpose,  and  the  rate  of  wages  paid 
to  each. 

[Same — Report  attached  to  account — Open  to  inspection.] 
He  must  attach  to  such  account  a  full  and  complete  report, 
under  oath,  of  the  work  done  in  said  mine,  the  amount  of 
ore  extracted,  from  what  part  of  mine  taken,  the  amount 
sent  to  mill  for  reduction,  its  assay  value,  the  amount  of 
buHion  received,  the  amount  of  bullion  shipped  to  the  ofiice 
of  the  companj^  or  elsewhere,  and  the  amount,  if  any,  retained 
by  the  superintendent.  It  is  his  duty  to  forward  to  the  of- 
fice of  the  company  a  full  report,  under  oath,  of  all  dis- 
coveries   of    ores    or    mineral-bearing    quartz    made    in    said 

302 


Tit. XL]  RIGHTS  OF  STOCKHOLDERS.  §  539 

mine,  wliether  by  boring,  drifting,  sinking,  or  otherwise,  to- 
gether with  the  assay  value  thereof.  All  accounts,  reports, 
and  correspondence  from  the  superintendent  must  be  kept 
in  some  conspicuous  place  in  the  office  of  said  company, 
open   to   the   inspection   of  all   stockholders. 

History:       Enacted    March    21,    1905,    Stats,    and    Amdts.    1905, 
pp.    585-586;    see    introductory    note   to    this   title. 


§589.  RIGHT  OF  STOCKHOLDER  TO  VISIT  MINE 
WITH     EXPERT.     [DUTY     OF     SUPERINTENDENT.] 

Any  stockholder  of  a  corporation  formed  under  the  laws 
of  this  state  for  the  purpose  of  mining,  is  entitled  to  visit, 
accompanied  by  his  expert,  and  examine  the  mine  or  mines 
owned  by  such  corporation,  and  every  part  thereof,  at  any 
time  he  may  see  fit;  and  when  such  stockholder  applies  to 
the  president  of  such  corporation,  he  must  immediately  cause 
the  secretary  thereof  to  issue  and  deliver  to  such  applicant 
an  order,  under  the  seal  of  the  corporation,  directed  to  the 
superintendent,  commanding  him  to  show  and  exhibit  such 
parts  of  said  mine  or  mines  as  the  party  named  in  said  order 
may  desire  to  visit  and  examine. 

It  is  the  duty  of  the  superintendent,  on  receiving  such  or- 
der, to  furnish  such  stockholder  every  facility  for  making 
a  full  and  complete  inspection  of  said  mine  or  mines,  and 
of  the  workings  therein,  and  to  accompany  said  stockholder 
either  in  person,  or  to  furnish  some  person  familiar  with 
said  mine  or  mines  to  accompany  him  in  his  visit  to  and 
through    such   mine   or   mines,   and   every   part   thereof. 

[Failure   of  superintendent  to  obey  orders — Removal.]     If 

the  superintendent  fails  to  obey  such  order,  such  stock- 
holder is  entitled  to  recover,  in  any  court  of  competent 
jurisdiction,  against  the  corporation,  the  sum  of  one  thou- 
sand dollars,  and  traveling  expenses  to  and  from  the  mine, 
as  liquidated  damages,  together  with  costs  of  suit.  In  case 
of  such  refusal,  it  is  the  duty  of  the  directors  of  the  corpora- 

303 


§590  CIVIL    CODE.  [Div.I,Pt.IV. 

tion  forthwith  to  remove  the  officer  so  refusing,  and  there- 
after he  must  not  be  employed  directly  or  indirectly  by  the 
corporation,  nor   must   any   salary  be  paid  to   him. 

History:  Enacted  March  21,  1905,  pp.  586-587;  see  intro- 
ductory   note   to    this    title. 

§590.  LIABILITY  OF  PRESIDENT  AND  DIREC- 
TORS. [REFUSAL  TO  PERMIT  EXAMINATION; 
DAMAGES.]  In  case  of  the  refusal  or  neglect  of  the  presi- 
dent to  cause  to  be  issued  by  the  secretary  the  order  men- 
tioned in  section  five  hundred  and  eighty-nine,  such  stock- 
holder is  entitled  to  recover  against  said  president  the  sum 
of  one  thousand  dollars  and  costs,  as  provided  in  the  last 
section. 

If  the  directors  fail  to  have  the  reports  and  accounts  cur- 
rent made  and  posted  as  provided  in  section  five  hundred 
and  eighty-eight,  they  are  liable,  either  severally  or  jointly, 
to  an  action  by  any  stockholder  complaining  thereof,  and  on 
proof  of  such  refusal  or  failure,  he  may  recover  judgment 
for  actual  damages  sustained  by  him,  v^ith  costs  of  suit. 

[Removal  of  directors.]  Each  of  such  defaulting  directors 
is  also  liable  to  removal  for  such  neglect. 

History:  Enacted  March  21,  1905,  p.  587;  .see  introductory 
note  to   this   title. 


304 


Tit.XIa.]     CHAMBERS  OF  COMMERCE,  ETC.  §  591 


[This  title  was  added  by  Act  March  21,  1905,  Stats,  and 
Amdts.  1905,  pp.  587-589.  The  sections  are  a  verbatim  re-enact- 
ment of  tlie  similarly  numbered  sections  of  the  Code  Commis- 
sion, Act  March  16,  1901  (Stats,  and  Amdts.  1900-1,  pp.  380,  381), 
which  was  held  unconstitutional,  see  history,  §  4  ante.  Thi.** 
added  title  is  a  codification  of  Act  1866  (Stats.  1865-6,  p.  469), 
as  amended  by  Act  1868  (Stats.  1867-8,  p.  15),  and  Act  1885 
(Stats,  and  Amdts.  1885,  p.  76).  See  Stats,  and  Amdts.  1900-1, 
p.    429.]  « 

TITLE  XIa. 

CORPORATIONS   FOR    THE    FORMATION    OF    CHAMBERS    Of 
COMMERCE,   BOARDS  OF  TRADE,   MECHANICS'    INSTI- 
TUTES,   AND    OTHER    KINDRED    ASSOCIATIONS. 

§  591.     Formation,    organization    and   powers    of. 

§  592.     Capital   stock   and  certificates  of. 

§  592a.  Powers  which  may  be  conferred  on  the  trustees,  di- 
rectors,   or    the    executive    committee. 

§  592b.  Power    to    acquire,    sell,   possess,   and    use    property. 

§  592c.   The   by-laws.      [Meetings,    how    called   and   conducted.] 

§  592d.  Power   to   levy  and   collect  assessments. 

§  592e.  Pre-existing  corporations  may  become  entitled  to  the 
benefit  of  this  title. 

§  591.     FORMATION,  ORGANIZATION  AND  POWER 

OF.  Corporations  for  the  formation  and  organization  of 
chambers  of  commerce,  boards  of  trade,  mechanics"  insti- 
tutes, and  other  associations  formed  for  the  extension  and 
promotion  of  trade  and  commerce,  or  the  advancement,  pro- 
tection, and  improvement  of  the  mechanic  arts,  may  be 
formed  by  twenty  or  more  persons,  who  must  execute  and 
file  articles  of  incorporation  as  prescribed  in  chapter  one  of 
title  one  of  part  four  of  this  code.  Upon  receiving  from  the 
secretary  of  state  a  certificate  of  the  filing  with  him  of  a 
certified  copy  of  its  articles  of  incorporation,  such  corpora- 
tion becomes  a  body  corporate,  and  by  its  corporate  name 
has  succession  for  the  period  limited  in  its  articles,  and  pow- 
er: To  sue  and  be  sued  in  any  court;  to  make  and  use  a 
common    seal,   and   alter   it    at   pleasure;    to    lease,   purchase, 

305 


§§592, 592a  civil  code.  [Div.I.Pt.IV. 

hold,  sell,  mortgage,  convey  in  trust,  convey,  release  from 
trust  or  mortgage,  such  real  and  personal  property  as  here- 
inafter provided;  to  elect  and  appoint  such  officers,  agents, 
and  servants  as  the  business  of  the  corporation  may  require, 
and  to  make  by-laws,  not  inconsistent  with  the  laws  of  this 
state,  providing  for  the  organization  of  the  corporation  and 
the  management  of  its  affairs. 

[Business.]  No  corporation  formed  under  this  title  must 
engage  in  any  mercantile,  commercial,  or  mechanical  busi- 
ness. 

Hi.story:  Enacted.  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   5SS. 

§592.     CAPITAL    STOCK    AND    CERTIFICATES    OF. 

Every  corporation  formed  under  this  title  may  have  a  cap- 
ital stock  and  issue  certificates  to  represent  the  shares  there- 
of, if  the  articles  of  incorporation  contain  a  statement  of 
the  amount  of  its  capital  stock  and  the  number  of  shares  into 
which    it    is   divided. 

[Rights  and  privileges  of  stockholders.]  The  rights  and 
privileges  to  be  accorded  to  stockholders  are  distinct  from 
those  to  be  accorded  to  members  at  large  of  the  corporation, 
and  the  obligations  to  be  imposed  upon  stockholders  in  the 
same  relation  must  be  fixed  and  established  in  the  by-laws 
of   the   corporation. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   5'88. 

§592a.  POWER  WHICH  MAY  BE  CONFERRED  ON 
THE  TRUSTEES,  DIRECTORS,  OR  THE  EXECUTIVE 
COMMITTEE.  The  corporation  may  confer  upon  a  board 
of  trustees  or  directors,  or  upon  a  body  to  be  styled  the 
executive  committee  of  the  corporation,  the  right  to  exer- 
cise all  or  any  of  the  corporate  powers,  if  the  articles  of  in- 
corporation state  that  the  right  to  exercise  the  corporate 
powers  is  to  be  confided  to  such  board  of  trustees  or  di- 
rectors or  to  such  executive  committee,  and  the  number  of 

306 


Tit.XIa.]  POWER  TO  CONTINUE.  §§  592b,  592c 

trustees,  directors,  or  committee,  and  the  names  of  those 
selected  to  take  charge  of  the  affairs  of  the  corporation  for 
the  first  six  months. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
pp.   588-589. 

§592b.  POWER  TO  ACQUIRE,  SELL,  AND  USE 
PROPERTY.  Every  corporation  formed  under  this  title 
may  lease,  purchase,  have,  hold,  use,  take  possession  of,  and 
enjoy  in  fee.  simple  or  otherwise  any  personal  or  real  prop- 
erty within  the  state  necessary  for  the  uses  and  purposes 
of  the  corporation,  and  may  sell,  lease,  deed  in  trust,  alien, 
or  dispose  of  the  same  at  its  pleasure. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905. 
p.    589. 

§592c.  THE  BY-LAWS.  [MEETINGS,  HOW  CALL- 
ED AND  CONDUCTED.]  The  by-laws  of  any  corporation 
formed  under  this  title  without  capital  stock  must  prescribe 
how  members  of  the  corporation  shall  be  admitted  and  how 
expelled,  and  how  officers,  agents,  and  servants  shall  be  ap- 
pointed. Such  provisions  in  the  by-laws  have  force  and  ef- 
fect as  between  private  parties  and  the  corporation. 

[Manner  of  calling  and  conducting  meetings.]  All  cor- 
porations formed  under  the  provisions  of  this  title  must 
determine,  by  their  by-laws,  the  manner  of  calling  and  con- 
ducting their  meetings,  the  number  of  members  that  con- 
stitute a  quorum,  the  manner  of  levying  and  collecting  as- 
sessments, the  officers  of  the  corporation,  the  manner  of 
their  election  or  appointment  and  their  tenure  of  office,  and 
may  prescribe  suitable  penalties  for  the  violation  of  such 
by-laws,  not  exceeding  in  any  case  one  hundred  dollars  for 
any   one   ofTense. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    589. 

307 


§§592d,  592e  CiVlL  CODE.  [Div.I.Pt.IV. 

§  592d.  POWER  TO  LEVY  AND  COLLECT  ASSESS- 
MENTS. Every  corporation  formed  under  the  provisions 
of  this  title  has  power  to  levy  and  collect,  from  the  mem- 
bers thereof,  for  the  purpose  of  paying  the  proper  and  legal 
expenses  of  the  corporation,  assessments  in  such  manner  as 
may   be   prescribed   by   its   by-laws,  but  not  otherwise. 

History:  Enacted  March  21,  1905,  Stats,  and  Anidts.  1905, 
p.    589. 

§592e.  PRE-EXISTING  CORPORATIONS  MAY  BE- 
COME ENTITLED  TO  THE  BENEFIT  OF  THIS 
TITLE.  Every  corporation,  association,  or  institution 
formed  prior  to  the  enactment  of  this  title,  for  any  of  the 
purposes  contemplated  thereby,  may,  by  a  vote  of  the  ma- 
jority of  its  members  voting  at  a  meeting  called  for  that 
purpose,  become  entitled  to  the  benefit  thereof  on  filing  the 
ceretificate  hereinafter  required. 

Notice  of  such  meeting  and  of  its  object  must  be  pub- 
lished in  a  newspaper  of  general  circulation  in  the  county 
in  which  the  principal  place  of  business  of  the  corporation, 
association,  or  institution  is  located,  for  at  least  two  weeks 
before  the  day  on  which  the  meeting  is  to  be  held. 

[Certificate,  execution  and  contents.]  Such  certificate 
must  be  signed  and  acknowledged  by  at  least  five  members 
of  the  corporation,  association,  or  institution,  must  contain 
a  list  of  the  members  who  desire  to  become  members,  and 
must  be  filed  with  the  county  clerk  of  such  county,  and  a 
copy  thereof,  certified  by  him,  must  be  filed  with  the  sec- 
retary of  state.  Thereupon  such  corporation,  association,  or 
institution  possesses  all  the  powers  and  privileges  conferred 
by   this   title. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    589. 


3()8 


Tit. XII. J  RELIGIOUS,    ETC.,    CORPORATIONS.  §593 


TITLE  XII. 

RELIGIOUS,   SOCIAL,    AND    BENEVOLENT    CORPORATIONS. 

§  593.     Corporations    not    for   profit.      Number    of    individuals. 

§  593[a].Same. 

§  .594.     Additional    facts,    articles    of    incorporation    to    set    out 

[repealed]. 
§  595.     Amount  of  real  estate  to  be  owned  by  such  corporations. 
§  596.     How    much    land   friendly,    etc.,    societies    may    hold. 
§  597.      Directors    to    make   verified   report   annually. 
§  598.      Sale,  mortgage,   and  bond   of   real  property. 
§  599.     What  by-laws,  etc.,  may  provide  for. 
§  600.     Members   admitted   after   incorporation. 
§  601.     No   member   to   transfer   membersliip,  etc. 
§  602.     Religious    society    may    become    a    corporation    sole. 
§  602a.  Corporation    sole,    continuous    existence. 
§  603.     Incorporation   of  religious   society. 
§  604.     Head   office,   annual    election,   etc. 
§  604a.  Formation    of   religious   corporations.      Directors. 
§  605.     Consolidation    of    corporations. 

§593.  CORPORATIONS  NOT  FOR  PROFIT.  NUM- 
BER OF  INDIVIDUALS.  Any  number  of  persons  asso- 
ciated together  for  any  purpose,  where  pecuniary  profit  is  not 
their  object,  and  for  which  individuals  may  lawfully  asso- 
ciate themselves,  may,  in  accordance  with  the  rules,  regu- 
lations, or  discipline  of  the  association,  elect  directors,  the 
number  thereof  to  be  not  less  than  three  nor  more  than 
thirty-one,  and  may  incorporate  themselves  as  provided  in 
this  title. 

History:  Enacted  March  21,  1872,  founded  upon  Stats.  1869-70, 
pp.  46  and  420  §  1;  amended  April  3,  ISSO,  Code  Amdts.  1880 
(C.  C.  pt.),  p.  6;  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  381,  held  unconstitutional,  see  Kerr's  Cyc. 
C.  C.  §  4;  amendment  re-enacted  March  18,  1905,  Stats,  and 
Amdts.  3  905,  p.  113;  March  18,  1907,  Stats,  and  Amdts.  1907,  p. 
579,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  415;  February  24,  1911, 
Stats,  and  Amdts.   1911,  p.  77. 

This  section  was  again  amended  on  May  1,  1911,  which 
amendment   is   given  below   as  §  593[a]. 

309 


§§593[a]-59S  CIVIL  CODE.  [Div.I,Pt.IV. 

§593[a].  SAME.  Any  number  of  persons,  associated  to- 
gether for  any  lawful  purpose  other  than  pecuniary  profit, 
may  incorporate  their  said  association,  as  provided  in  this 
title. 

History:  Enacted  March  21,  18T2,  founded  upon  Stats.  1869- 
70,  pp.  46,  420  §  1;  amended  April  3,  1880  (C.  C.  pt.),  p.  6;  by  Code 
Commission,  Act  March  16,  1901,  Stats,  and  Amdts.  15)00-1,  p. 
381,  held  unconstitutional,  see  Kerr's  Cyc.  C.  C.  §  4;  amendment 
re-enacted  March  18,  1905,  Stats,  and  Amdts.  1905,  p.  113;  March 
18,  1907,  Stats,  and  Amdts.  1907,  p.  579,  Kerr's  Stats,  and. Amdts. 
1906-7,  p.  415;  February  24  and  May  1,  1911.  Stats,  and  Amdts. 
1911,  pp.   77,   1434. 


§594.  ADDITIONAL  FACTS,  ARTICLES  OF  INCOR- 
PORATION TO  SET  OUT   [repealed]. 

History:  Enacted  March  21,  1872,  founded  upon  §  176,  Act 
April  22,  1850,  Stats.  1850,  p.  374,  as  amended  April  8,  1862,  Stats. 
1862  ,p.  125;  repealed  May  1,  1911,  Stats,  and  Amdts.  1911,  p. 
1434. 


§  595.  AMOUNT  OF  REAL  ESTATE  TO  BE  OWNED 
BY  SUCH  CORPORATIONS.  All  such  corporations  may 
hold  all  the  property  of  the  association  owned  prior  to  in- 
corporation, or  acquired  thereafter  in  any  manner,  and 
transact  all  business  relative  thereto;  but  no  such  corpora- 
tion must  own  or  hold  more  real  estate  than  may  be  neces- 
sary for  the  business  and  objects  of  the  association,  and  pro- 
viding burial-grounds  for  its  deceased  members,  not  to  ex- 
ceed SIX  whole  lots  in  any  city  or  town,  nor  more  than  fifty 
acres  in  the  country,  the  annual  increase,  income  or  profit, 
whereof  must  not  exceed  fifty  thousand  dollars;  provided, 
that  any  such  corporation  now  or  hereafter  having,  and  hav- 
ing had  contmuously,  for  the  next  preceding  three  years,  the 
care,  custody,  control,  and  maintenance  each  year,  upon  an 
annual  average  of  not  less  than  one  hundred  orphans,  half 
orphans,  and  indigent  minor  children,  at  any  one  orphan 
asylum,    shall   be    entitled    and   allowed    to    own   and   possess 

310 


Tit. XII. J  LAND  THAT  MAY   HOLD.  §596 

any  number  of  acres  not  exceeding  one  hundred  and  sixty 
acres  of  land  in  the  country,  outside  of  any  incorporated 
city  or  town,  and  the  annual  income  or  profit  of  which  does 
not  exceed  fifty  thousand  dollars;  and  provided  further,  that 
the  limitations  herein  provided  for  shall  not  apply  to  cor- 
porations formed,  or  to  be  formed,  under  section  six  hundred 
and  two  of  the  Civil  Code,  when  the  land  is  held  or  used  for 
churches,  hospitals,  schools,  colleges,  orphan  asylums,  par- 
sonages, or  cemetery  purposes  or  to  corporations  organized 
for  social  purposes  and  purposes  of  recreation  and  not  for 
profit;  and  provided  further,  that  the  limitations  herein  pro- 
vided for  shall  not  apply  to  corporations  organized  other 
than  for  profit,  when  the  land  is  timber  land,  and  not  ex- 
ceeding one  hundred  and  sixty  acres  in  extent,  and  is  held 
or  used  for  the  purposes  of  the  organizations,  in  which  case 
said  land  shall  be  subject  to  all  laws  regulating  the  preser- 
vation of  forests. 

History:  Enacted  March  21,  1S72,  founded  upon  §  1S2,  Act 
April  22,  1850,  Stats.  1850,  p.  374;  amended  Act  May  3,  1852, 
Stats.  1852,  p.  168;  Act  May  3,  1853,  Stats.  1853,  pp.  140-141;  Act 
March  6,  1863,  Stats.  1863,  p.  34;  amended  April  6,  1881,  Stats, 
and  Amdts.  1881,  p.  9;  April  19,  1899,  Stats,  and  Amdts.  1899,  p. 
10;  by  Code  Commission,  Act  March  16,  1901,  Stats,  and  Amdts. 
1900-1,  p.  382,  held  unconstitutional,  see  history,  §  4  ante; 
amendment  re-enacted  substantially  in  form'  passed  in  1901, 
March  13,  1903,  Stats,  and  Amdts.  1903,  p.  136;  amended  Feb- 
ruary   21,    1905,  Stats,   and  Amdts.    1905,   p.    18. 


§596.  HOW  MUCH  LAND  FRIENDLY,  ETC.,  SOCI- 
ETIES MAY  HOLD.  In  addition  to  that  provided  for  m 
the  preceding  section,  friendly  societies  and  pioneer  associa- 
tions maj^  hold  such  real  estate  as  may  be  necessary  to 
carry  out  their  charitable  purposes,  or  for  the  establishment 
and  endowment  of  institutions  of  learning  connected  there- 
with. In  case  any  such  corporation  is  the  ow^ner,  by  do- 
nation or  purchase,  of  more  lands  than  herein  or  in  preced- 
ing   section    provided    for,    such    surplus    must    be    sold    and 

311 


§§597,598  CIVIL  code.  [Div.I.Pt.IV. 

conveyed  by  the  corporation  within  five  years  after  its  acqui- 
sition. Such  sale  may  be  made  without  the  order  or  de- 
cree of  the  superior  court  as  hereinafter  provided. 

History:  Enacted  March  21,  1872;  amended  Act  Jan.  25,  187.^, 
Code  Amdts.  1877-8,  p.  84;  Act  April  6,  1880,  Code  Amdts.  188U 
(C.  C.  pt.),  p.   6. 

§597.  DIRECTORS  TO  MAKE  VERIFIED  REPORT 
ANNUALLY.  The  directors  must  annually  make  a  full  re- 
port of  all  property,  real  and  personal,  held  in  trust  for  their 
corporation  by  them,  and  of  the  condition  thereof,  to  the 
members   of  the   association   for  which   they  are   acting. 

History:  Enacted  March  21,  1872,  founded  upon  §  183,  Act 
April  22,  1850,  Stats.  1850,  p.  374;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  382,  held 
unconstitutional,   see  history,    §  4  ante. 

§598.  SALE,  MORTGAGE,  AND  BOND  OF  REAL 
PROPERTY.  Before  selling,  mortgaging,  aliening,  encum- 
bering or  granting  its  real  property,  or  any  part  thereof, 
except  a  burial  plot  situated  in  grounds  dedicated  to  burial 
purposes,  a  corporation  organized  under  this  title  must  first 
make  it  appear  that  the  same  is  for  its  interest  to  the  satis- 
faction of  the  superior  court  of  the  county  wherein  said  real 
property  is  situated. 

[Filing  petition.]  To  this  end  said  corporation  shall  file 
with  the  clerk  of  said  court  a  verified  petition,  describing 
the  property  aflfected,  showing  that  the  selling,  mortgaging, 
aliening,  encumbering,  or  granting  of  said  property  is  for 
its  interest,  and  praying  that  leave  therefor  be  granted. 

[Hearing  on  petition.]  Thereupon  the  court  shall  make 
an  order  reciting  that  said  leave  has  been  prayed  for,  describ- 
ing the  property  aflfected,  and  fixing  a  time  and  place  for  the 
hearing  of  the  petition.  Thereafter  copies  of  said  order  shall 
be  kept  posted  conspicuously  for  a  period  of  ten  days  at  the 
following  places:     (1)   on  the  real  property  affected;    (2)   at 

312 


Tit.XIL]         GRANTING    EASEMENTS — BY-LAWS.  §599 

the  place  where  the  court  is  held;  (3)  at  any  other  public 
place  in  said  county  where  the  said  court  shall  direct.  At  the 
time  set  for  the  hearing  the  court  must  require  proof  that 
said  notice  has  been  faithfully  given;  and  any  member  may 
appear  and  oppose  or  support  the  granting  of  the  leave.  If 
satisfied  that  it  is  for  the  interest  of  said  corporation,  said 
court  shall  thereupon  grant  said  leave,  and  may  authorize  the 
said  corporation  to  sell  and  convey  its  said  property  and  to 
incur  indebtedness  and  secure  the  same  by  deed  of  trust  or 
mortgage  upon  its  said  real  property; 

[Power  to  grant  easements.]  Provided,  however,  that  any 
such  corporation  shall  have  the  power  by  resolution,  entered 
upon  the  minutes  of  such  corporation,  to  grant  easements  to 
municipal  or  other  public  corporations  for  public  street,  alley 
or  highway  purposes  and  rights  of  way  for  publicly  owned 
utilities  and  public  uses,  upon  the  approval  of  the  superior 
court  of  the  county  wherein  the  real  property  of  such  cor- 
poration is  situated,  obtained  in  the  same  manner  as  herein 
provided  for  the  selling,  mortgaging,  aliening  or  encumber- 
ing  of   its   said   property. 

History:  Enacted  March  21,  1872,  founded  upon  §183,  Act 
April  22,  1850,  Stats.  1850,  p.  374;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  382,  held 
unconstitutional,  see  Kerr's  Cyc.  C.  C.  §  4;  amended  May  1, 
1911,  Stats,  and  Amdts.  1911,  p.  1434;  June  10,  1913.  Stats,  and 
Amdts.   1913,  p.   565.     In  eflfect  August  10,   1913. 


§599.     BY-LAWS,  ETC.,  WHAT  MAY  PROVIDE  FOR. 

Corporations  now  organized  or  that  may  hereafter  be  or- 
ganized for  purposes  other  than  profit,  may,  either  in  their 
by-laws,  ordinances,  constitutions,  or  articles  of  incorpora- 
tion, provide   for: 

1.  [Qualification  of  members.]  The  qualification  of  mem- 
bers, mode  of  election  or  appointment,  and  terms  of  admis- 
sion to  membership; 

313 


§599  Civil.  CODE.  [Div.I.Pt.IV. 

2.  The  fees  of  admission  and  dues  to  be  paid  to  their  treas- 
urer by  members; 

3.  [Quorum — Election  of  Directors.]  The  number  of 
persons  that  shall  constitute  a  quorum  at  any  meeting 
of  the  members  of  the  corporation,  and  the  number  of 
directors  who  shall  constitute  a  quorum  at  any  meet- 
ing of  the  board  of  directors,  and  the  election  of  direc- 
tors or  other  officers  of  the  corporation  by  a  meeting 
of  the  members  of  the  corporation  so  constituted,  or 
by  a  meeting  of  the  board  of  directors  so  constituted,  and 
the  appointment  or  selection  of  directors,  or  other  officers, 
in  any  manner;  and  if  any  corporation  now  organized,  or 
that  may  hereafter  be  organized,  for  purposes  other  than 
profit,  does  in  its  by-laws,  ordinances,  constitutions  or  arti- 
cles of  incorporation,  provide  for  an  election  of  directors  or 
other  officers  of  the  corporation  by  a  meeting  of  the  mem- 
bers of  the  corporation  so  constituted,  or  by  a  meeting  of 
the  board  of  directors  so  constituted,  or  for  the  appoint- 
ment or  selection  of  directors  or  other  officers,  in  any  man- 
ner, then  such  election  or  appointment  or  selection  shall  be 
as  valid  as  if  made  at  an  election  at  which  a  majority  of  the 
members   of   the   corporation   were  present   and   voted; 

4.  [Manner  of  voting.]  The  manner  of  voting  bj^  the 
members  of  the  corporation,  which  may  be  by  ballot  in  the 
manner  provided  for  by  section  three  hundred  twenty-one  b 
of  this  code,  or  in  any  other  manner  provided  for  by  the 
by-laws,  ordinances,  constitutions,  or  articles  of  incorpora- 
tion of  any  corporation  now  organized,  or  that  may  here- 
after be  organized,  for  purposes  other   than  profit; 

5.  [Expulsion  of  members.]  The  expulsion  and  suspen- 
sion of  members  for  misconduct  or  non-payment  of  dues, 
also   for   restoration   to   membership; 

6.  [Organization  of  board,  etc.]  A  special  method  of  or- 
ganizing the  board  of  directors,  and  a  special  method  of 
increasing  or  diminishing  the  number  of  directors  within 
the  limits  as  to  number  prescribed  by  section  five  hundred 
ninety-three  of  this  code; 

314 


Tit.XII.]         BY-LAWS— MEMBERS— TRANSFERS.        §§600-602 

7.  [Indebtedness.]  Contracting,  securing  and  limiting  the 
amount  of  their  indebtedness; 

8.  [Rules,  regulations,  discipline.]  That  the  rules,  regula- 
tions or  discipline,  for  the  time  being,  of  any  society,  reli- 
ious  denomination,  church,  or  other  corporation,  now  or- 
ganized or  which  may  hereafter  be  organized  for  purposes 
other  than  profit,  shall  always  be  a  part  of  their  by-laws, 
ordinances,    constitutions    or    articles    of    incorporation; 

9.  [Further  regulations.]  Other  regulations  not  repugnant 
to  the  constitution  or  laws  of  the  state  and  consonant  with 
the   objects   of   the   corporation. 

History:  Enacted  March  21,  1872;  amended  March  14,  1SS5, 
Stats,  and  Amdts.  1885,  p.  136:  March  31,  1897,  Stats,  and  Amdts. 
1897,  p.  246;  February  24,  1911,  Stats,  and  Amdts.  1911,  p.  77; 
April  29,  1915,  Stats,  and  Amdts.  1915,  p.  302.  In  efifeot  August 
8,    1915. 

§  600.  MEMBERS  ADMITTED  AFTER  INCORPORA- 
TION. Members  admitted  after  incorporation  have  all  the 
rights  and  privileges,  and  are  subject  to  the  same  responsi- 
bilities, as  members  of  the  association  prior  thereto. 

History:  Enacted  March  21,  1872,  founded  upon  §  S,  Act  April 
27,  1863,  Stats.  1863,  p.  627. 

§601.  NO  MEMBER  TO  TRANSFER  MEMBERSHIP, 
ETC.  No  member,  or  his  legal  representative,  must  dis- 
pose of  or  transfer  any  right  or  privilege  conferred  on  him 
by  reason  of  his  membership  of  such  corporation,  or  be  de- 
prived thereof,  except  as  herein  provided. 

Hi-story:      Enacted  March   21,  1872. 

§602.  RELIGIOUS  SOCIETY  MAY  BECOME  A  COR- 
PORATION SOLE.  Whenever  the  rules,  regulations,  or 
discipline  of  any  religious  denomination,  society,  or  church 
so  require,  for  the  administration  of  the  temporalities  there- 
of, and  the  management  of  the  estate  and  property  thereof, 

315 


§602  CIVIL   CODE.  [Div.I.Pt.IV. 

it  shall  be  lawful  for  the  bishop,  chief  priest,  or  presiding 
elder  of  such  religious  denomination,  society,  or  church  to 
become  a  sole  corporation,  in  the  manner  prescribed  in  this 
title,  as  nearly  as  may  be,  and  with  all  the  powers  and  duties, 
and  for  the  uses  and  purposes  in  this  title  provided  for  re- 
ligious incorporations,  and  subject  to  all  the  conditions,  limi- 
tations, and  provisions  in  said  title  prescribed. 

[Powers.]  Every  corporation  sole  shall,  however,  for  the 
purposes  of  the  trust,  have  power  to  contract  in  the  same 
manner  and  to  the  same  extent  as  a  natural  person,  and 
may  sue  and  be  sued,  and  may  defend,  in  all  courts  and 
places,  in  all  matters  and  proceedings  whatever,  and  shall 
have  authority  to  borrow  money,  and  give  promissory  notes 
therefor,  and  to  secure  the  payment  thereof  by  mortgage  or 
other  lien  upon  property,  real  or  personal;  to  buy,  sell,  lease, 
mortgage,  and  in  every  way  deal  in  real  and  personal  prop- 
erty in  the  same  manner  that  a  natural  person  may,  and 
without  the  order  of  anj^  court;  to  receive  bequests  and  de- 
vises for  its  own  use  or  upon  trusts  to  the  same  extent  as 
natural  persons  may;  and  to  appoint  attorneys  in  fact. 

[Articles  of  incorporation  to  set  forth,  what,]  The  arti- 
cles of  incorporation  to  be  filed  shall  set  forth  the  facts  au- 
thorizing such  incorporation,  and  declare  the  manner  in 
which  any  vacancy  occurring  in  the  incumbency  of  such 
bishop,  chief  priest,  or  presiding  elder  is  required  by  the 
rules,  regulations,  or  discipline  of  such  denomination,  society, 
or  church  to  be  filled,  which  statement  shall  be  verified  by 
affidavit,  and  for  proof  of  the  appointment  or  election  of 
such  bishop,  chief  priest,  or  presiding  elder,  or  of  any  suc- 
ceeding incumbent  of  such  corporation,  it  shall  be  sufficient 
to  record  with  the  clerk  of  the  county  in  which  such  bishop, 
chief  priest,  or  presiding  elder  resides,  the  original  or  a  copy 
of  his  commission,  or  certificate,  or  letters  of  election  or  ap- 
pointment, duly  attested;  provided,  all  property  held  by  such 
bishop,  chief  priest,  or  presiding  elder  shall  be  in  trust  for 
the  use,  purpose,  and  behoof  of  his  religious  denomination, 
society,  or  church. 

316 


Tit.XII.]  CORPORATION  SALE.  §  602a 

[Certain  limitation  does  not  apply.]  The  limitation  in  sec- 
tion five  hundred  and  ninety-five  shall  not  apply  to  corpora- 
tions formed  under  this  section,  when  the  land  is  held  or 
used  for  churches,  hospitals,  schools,  colleges,  orphan  asy- 
lums, parsonages,  or  cemetery  purposes.  Any  judge  of  the 
superior  court  in  the  county  in  which  any  corporation  is 
formed  under  this  chapter  shall  at  all  times  have  access  to 
the  books  of  such  corporation. 

[Continuation  of  corporation  sole.]  Any  corporation  sole 
heretofore  organized  and  existing  under  the  laws  of  this 
state  may  elect  to  continue  its  existence  under  this  title  by 
filing  a  certificate  to  that  effect,  under  its  corporate  seal  and 
the  hand  of  its  incumbent,  or  amended  articles  of  incorpora- 
tion, in  the  form  required  by  this  title,  and  as  prescribed  by 
section  two  hundred  and  eighty-seven  of  this  code;  and  from 
and  after  the  filing  of  such  certificate  or  amended  articles, 
such  corporation  shall  be  entitled  to  the  privileges  and  sub- 
ject to  the  duties,  liabilities,  and  provisions  in  this  title  ex- 
pressed. 

History:  Enacted  March  30,  1878,  Code  Amdts.  1877-8,  p.  84; 
amended  April  6,  1880,  Code  Amdts.  1880  (C.  C.  pt.),  p.  6; 
March    11,   1897,   Stats,   and  Amdts.    1897,   p.    101. 

§602a.  CORPORATION  SOLE,  CONTINUOUS  EX- 
ISTENCE. Every  corporation  sole  shall  have  continued 
succession  and  continuous  existence  during  the  term  for 
which  it  is  organized  to  exist,  notwithstanding  vacancies  in 
the  incumbency  thereof,  and  during  the  period  of  any  such 
vacancy  such  corporation  sole  shall  have  the  same  capacity 
and  right  to  receive  and  take  any  gift,  bequest,  devise  or  con- 
veyance of  property,  either  as  grantee  for  its  own  use,  or  as 
trustee,  and  to  be  or  be  made  the  beneficiary  of  a  trust,  as 
though  there  were  no  vacancy.  No  agency  created  by  a  cor- 
poration sole  by  a  written  instrument  which  in  express  terms 
provides  that  the  agency  thereby  created  shall  not  be  ternn- 
nated  by  a  vacancy  in  the  incumbency  of  such  corporation, 

317 


§§603,604  CIVIL  CODE.  [Div.I.Pt.IV. 

shall  be  terminated  or  afifected  by  the  death  of  the  incumbent 
of  such  corporation  or  by  a  vacancy  in  the  incumbency  there- 
of, however  caused. 

Historj-:  Enacted  March  21.  1907,  Stats,  and  Amdts.  1907, 
p.  836,  Kerr"s  Stats,  and  Amdts.  1906-7,  p.  415.  In  elfoct  im- 
mediately. 

§603.     INCORPORATION  OF  RELIGIOUS  SOCIETY. 

Any  religious  association  or  body  of  this  state,  composed  of 
constituent  churches,  parishes,  congregations,  societies  or 
missions  which  have  a  common  convention,  synod,  council, 
assembly  or  conference,  may  incorporate  under  the  provis- 
ions  'of    this    title. 

The  articles  of  incorporation  shall  set  forth  the  proceed- 
ings authorizing  the  incorporation  of  such  association,  the 
time  and  place  at  which  they  were  had,  the  ma«ner  in  which, 
and  the  terms  of  which,  the  directors  or  trustees  named  in 
the  articles  of  incorporation  were  chosen,  and  that  said  pro- 
ceedings were  in  accordance  with  the  constitution,  by-laws, 
discipline,  canons,  rules  and  regulations  of  such  association. 

The  articles  of  incorporation  need  be  subscribed  and  ac- 
knowledged only  by  the  presiding  officer,  and  clerk,  scribe, 
or  secretary  of  such  association;  but  they  must  make  affi- 
davit, which  shall  be  appended  to  the  articles,  that  they  sub- 
scribed and  acknowledged  the  articles  by  authority  of  such 
association,  and  that  the  statements  therein  contained  are 
true  to  the  best  of  their  knowledge,  information  and  belief. 

History:  Former  section  enacted  March  12,  1SS5,  Stats,  and 
Amdts.  1885,  p.  109;  sought  to  be  repealed,  it  is  thought,  by 
§  604,  subsequently  enacted;  repealed  and  present  section  enact- 
ed May  1,  1911,  Stats,  and  Amdts.  1911,  p.  1435. 

§604.     HEAD    OFFICE,    ANNUAL    ELECTION,  ETC. 

Any  corporation  organized  under  section  six  hundred  and 
three,  or  under  section  six  hundred  and  three  or  section  six 
hundred  and   four   as  they  existed    before    this    amendment, 

318 


Tit. X 11.]  FORMATION  OF — DIRECTORS.  §  604a 

must  maintain  its  head  office  at  the  place  where,  as  set  forth 
in  its  articles  of  incorporation,  its  principal  business  is  to  be 
transacted;  but  may  provide  in  its  by-laws  that  the  annual 
meeting  and  annual  electron  shall  be  held  at  such  other  place 
as  may  from  time  to  time  be  designated  by  the  directors  or 
trustees. 

Any  such  corporation  may  hold  and  administer  not  only 
the  common  property,  funds,  and  money  of  such  corpora- 
tion, but  also  the  property,  funds,  and  money  of  any  con- 
stituent church,  parish,  congregation,  society,  or  mission; 
and  in  so  far  as  the  land  held  by  any  such  corporation  is  held 
or  used  for  church,  hospital,  school,  college,  asylum,  par- 
sonage, or  cemetery  purposes,  the  limitation  declared  in  sec- 
tion five  hundred  and  ninety-five  shall  not  apply. 

History:  Enacted  March  20,  1903,  Stats,  and  Amdt.s.  1903,  p. 
252;  amended  May   1,    1911,  Stats,  and  Amdts.   1911,  p.   1435. 


§604a.  FORMATION  OF  RELIGIOUS  CORPORA- 
TIONS. DIRECTORS.  For  the  administration  of  the 
temporalities,  and  for  the  management  of  the  property  and 
estate  of  any  church,  diocese,  synod,  or  district  or  other  or- 
ganization of  such  church,  or  for  the  administration  of  the 
temporalities,  and  for  the  management  of  the  property  and 
estate  of  any  religious  society  or  order,  community,  or  other 
organization  of  said  religious  society  or  order,  any  church, 
diocese,  synod,  or  other  organization  of  such  church,  or  any 
community  or  other  council,  or  other  organization  of  any 
such  religious  society  or  order,  or  of  any  community  or 
other  organization  of  such  religious  society  or  order,  may 
elect  directors  and  become  an  incorporation  in  the  manner 
prescribed  in  this  title,  and  with  all  the  powers  and  duties 
and  for  the  uses  and  purposes  in  this  title  provided  for 
benevolent  or  religious  incorporations,  and  subject  to  all  the 
limitations  and  provisions  in  said  title  prescribed,  e.xcept  as 
otherwise  provided   in   this  section; 

319 


-§604a  CIVIL   CODE.  [Div.I.Pt.IV. 

[By-laws.]  Provided,  that  directors  of  any  such  incor- 
poration may  be  elected  and  by-laws  for  its  government  may 
be  made  and  amended  in  accordance  with  the  constitution, 
by-laws,  discipline,  rules  and  regulations  of  such  church, 
diocese,  synod,  or  district  or  other  organization  of  such 
church,  or  in  accordance  with  the  constitution,  by-laws,  dis- 
cipline, rules  and  regulations  of  such  religious  society  or  or- 
der, or  of  any  community,  or  other  organization  of  such  re- 
ligious society  or  order,  at  any  meeting; 

[Attesting  certificate  of  incorporation.]  And  provided,  the 
certificate  of  incorporation  and  of  the  election  of  directors 
to  be  filed  shall  be  sufficiently  attested  by  the  signatures  of 
the  presiding  officer,  president,  or  other  head,  and  acting  sec- 
retary of  such  church,  diocese,  synod  or  other  organization 
of  such  church,  or  of  the  community  or  other  council,  or 
other  organization  of  such  society  or  order,  and  that  the 
limitations  of  section  five  hundred  ninety-five  shall  not  ap- 
ply to  corporations  formed  under  this  section  when  land  is 
held  or  used  for  churches,  hospitals,  schools,  colleges,  asy- 
lums, or  parsonages. 

[Powers.]  Every  corporation  formed  pursuant  to  the  pro- 
visions of  this  section  shall  have  power  to  contract  in  the 
same  manner  and  to  the  same  extent  as  a  natural  person,  and 
may  sue  and  be  sued,  and  may  defend  in  all  courts  and 
places  in  all  matters  and  proceedings  whatsoever,  and  shall 
have  authority  to  borrow  money,  give  promissory  notes 
therefor,  and  secure  the  payment  thereof  by  mortgage  or 
other  lien  upon  property,  real  or  personal,  and  may  buy,  sell, 
lease,  mortgage  and  deal  in  real  and  personal  property  in  the 
same  manner  that  a  natural  person  may,  subject,  how^ever, 
to  the  provisions  of  section  five  hundred  and  ninety-eight 
of  this  code;  and  may  receive  bequests  and  devises  for  its 
own  use,  or  upon  trusts,  to  the  same  extent  as  a  natural  per- 

320 


Tit. XII.]  CONSOLIDATION — RESOLUTION.  *  §605 

son,  subject,  however,  to  the  provisions  of  section  thirteen 
hundred  thirteen  of  the  Civil  Code  of  the  State  of  California, 
and  may  appoint  attorneys  in   fact. 

Histciry:      Enacted   June    10.    1913,    Stats,    and    Amdts.    1913,    p. 
566.     In  effect  August  10,   1913. 


§605.     CONSOLIDATION  OF  CORPORATIONS.     Any 

corporation  now  or  hereafter  organized  for  purposes  other 
than  profit,  may  consolidate  with  any  other  like  association 
or  associations,  or  corporation  or  corporations,  created  either 
under  the  laws  of  the  State  of  California,  or  under  the  laws 
of  any  other  state  or  territory,  so  as  to  forin  a  new  or  con- 
solidated corporation,  in  such  manner  as  may  be  authorized 
by  the  respective  boards  of  directors  or  trustees  of  such 
associations  or  corporations  by  resolution  adopted  at  meet- 
ings of  the  respective  boards  called  for  that  purpose. 

The  resolution  to  be  adopted  by  each  of  the  respective 
boards  shall  state  the  names  of  all  the  corporations  or  asso- 
ciations to  be  united  by  the  consolidation,  the  name  of  the 
state  or  territory  under  the  laws  of  which  they  are  created 
or  organized,  and  the  dates  of  their  respective  incorporation, 
the  name  by  which  the  new  or  consolidated  corporation  is 
to  be  called  or  known,  the  purposes  for  which  it  is  to  be 
formed,  the  place  where  its  principal  business  is  to  be  trans- 
acted, the  term  for  which  it  is  to  exist,  the  number  of  its  di- 
rectors or  trustees,  and  the  names  and  residences  of  those 
who  are  appointed  to  act  as  such  for  the  first  year,  and  shall 
designate  three  or  more  persons  by  whom  articles  of  incor- 
poration of  the  new  or  consolidated  corporation  shall  be  sub- 
scribed and  filed  in  compliance  with  this  section. 

Articles  of  incorporation  of  the  new  or  consolidated  cor- 
poration shall  be  subscribed  and  acknowledged  by  the  per- 
sons so  designated  as  last  aforesaid  in  the  manner  required 
by  section  two  hundred  and  ninety-two  of  this  code.  Said 
articles  shall  contain  and  set  forth  all  the  matters  required 
by  section  two  hundred  and  ninety  of  this  code,  and  in  addi- 

11  321 


§605  CIVIL  CODE.  [Div.I,Pt.IV. 

tion  thereto  there  shall  be  attached  to  said  articles  copies  of 
the  aforesaid  resolution  of  the  several  associations  or  cor- 
porations, uniting  in  the  consolidation,  certified  by  the  respec- 
tive secretaries  of  such  associations  or  corporations  under 
the  corporate  seals  thereof;  and  the  said  articles  of  incor- 
poration shall  in  the  body  thereof  refer  to  the  said  resolu- 
tions and  to  the  certified  copies  thereof  so  attached,  and  by 
such  reference  make  the  said  certified  copies  a  part  of  the 
said  articles. 

The  said  articles  of  incorporation  shall  be  filed  in  the  of- 
fice of  the  county  clerk  of  the  county  where  the  principal 
business  of  the  new  or  consolidated  corporation  is  to  be 
transacted,  and  a  certified  copy  thereof  in  the  office  of  the 
secretary  of  state,  in  the  manner  required  by  this  code  for 
the  filing  of  original  articles  of  incorporation;  and  thereupon 
the  secretary  of  state  shall  issue  to  the  corporation,  over  the 
great  seal  of  the  state,  a  certificate  in  manner  and  form  as 
provided  by  section  two  hundred  and  ninety-six  of  this  code. 

From  and  after  the  filing  of  such  certified  copy  of  the 
articles  of  incorporation  with  the  secretary  of  state  the  for- 
mer associations  or  corporations  uniting  in  the  consolida- 
tion and  comprising  the  component  parts  of  the  new  or  con- 
solidated corporation  shall  cease  to  exist,  and  the  new  or 
consolidated  corporation  shall  succeed  to  all  the  rights, 
duties  and  powers  of  the  component  associations  or  corpora- 
tions, and  shall  be  possessed  of  all  the  rights,  duties  and 
powers  set  forth  in  its  articles  of  incorporation  not  incon- 
sistent with  this  title,  and  shall  be  subject  to  all  the  liabili- 
ties and  obligations  of  the  former  component  associations  or 
corporations,  and  shall  succeed  to  and  become  vested  with 
all  the  property  thereof,  both  real  and  personal,  of  every 
name  and  nature,  and  may  make  by-laws  and  do  all  things 
permitted  by  this  title. 

History:  Original  section  providing  for  consolidation  of 
debts,  enacted  March  20,  1903,  Stats.  and.Amdts.  1903,  p.  252; 
present  section  enacted  as  an  amendment  April  26,  1909,  Stats, 
and  Amdts.  1909,  p.  1094. 

322 


Tit.XIIa.]  HUMANE  CORPORATIONS.  §§  607,  607a 


[This  is  a  new  title  added  by  Act  March  21,  1905  (Stats,  and 
Amdts.  1905,  pp.  590-592),  and  is  a  re-enactment  of  a  new  title 
added  by  Code  Commission,  Act  March  16,  1901  (Stats,  and 
Amdts.  1900-1,  pp.  382-384,  429),  which  was  held  unconstitu- 
tional, see  history.  §  4  ante.  The  title  is  a  codification  of  Act 
1874,    Stats.    1873-4,    p.    499,   and    Act    1876,    Stats.    1875-6,   p.    830.] 

TITLE  Xlla. 

SOCIETIES    FOR   THE    PREVENTION   OF    CRUELTY   TO 
CHILDREN   AND   ANIMALS. 

§  607.     Formation    of    [humane]    corporations. 

§  607a.   Power  of  to  receive  and  dispose  of  property.      [Amount.] 

§  607b.  Complaints    for    violating-    any    law    relating    to    children 

or    animals. 
§  607c.  Magistrates  and  police  officers  to  aid  the  corporation  and 

its  offlceTs. 
§  607d.  Pre-existing  corporations.      [Title   extends   to.] 
§  607e.   Compensation  of. 
§  607f.    Appointment  of  humane  officers. 
§  607g.  Children    who    may    be    arrested    and    brought    before    a 

court   or   magistrate   for   examination. 


§607.  FORMATION  OF  [HUMANE]  CORPORA- 
TIONS. Corporations  may  be  formed  by  any  number  of 
persons  not  less  than  five,  a  majority  of  whom  must  be  citi- 
zens and  residents  of  this  state,  under  the  general  provisions 
of  this  code,  for  the  purpose  of  the  prevention  of  cruelty  to 
children  or  animals,   or  both. 

History-:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
590;   see  introductory  note  to  this   title. 

§607a.  POWER  TO  RECEIVE  AND  DISPOSE  OF 
PROPERTY.  [AMOUNT.]  Every  such  corporation  may 
take   and   hold,   by  gift,    purchase,    devise,    or    bequest,    any 

323 


§§607b-607d  CIVIL  CODE.  [Div.I,Pt.IV. 

property,  real  or  personal,  and  dispose  of  the  same  at  its 
pleasure;  but  it  must  not  hold  real  property  the  annua!  in- 
come of  which  exceeds  fifty  thousand  dollars. 

History:      Enacted   March    21,    1905,   Stats,   and   Amdts.    1905,   p. 
590;  see  introductory  note  to  this  title. 


§607b.  COMPLAINTS  FOR  VIOLATING  ANY  LAW 
RELATING  TO  CHILDREN  OR  ANIMALS.  Any  such 
corporation,  or  any  member  or  officer  thereof,  may  prefer  a 
complaint  against  any  person  or  persons,  before  anj^  court 
or  magistrate  having  jurisdiction,  for  the  violation  of  any 
law  relating  to  or  affecting  children  or  animals,  and  may  aid 
in  the  prosecution  of  any  such  offender  before  such  court  or 
magistrate  in  any  proceeding  taken. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
590;   see  introductory  note  to  this  title. 


§  607c.     MAGISTRATES  AND  POLICE  OFFICERS  TO 
AID   THE   CORPORATION   AND   ITS   OFFICERS.     All 

magistrates,  constables,  sheriffs,  and  officers  of  police  inust, 
as  occasion  may  require,  aid  any  such  corporation,  its  offi- 
cers, members,  and  agents,  in  the  enforcement  of  all  laws 
which  are  now  or  may  be  hereafter  enacted  relating  to  or 
affecting  children  or  animals. 

History:      Enacted   March    21,    1905,   Stats,   and   Amdts.    1905,   p. 
590';  see  introductory  note  to  this  title. 


§607d.  PRE-EXISTING  CORPORATIONS.  [TITLE 
EXTENDS  TO.]  The  provisions  of  this  title  extend  to  all 
corporations  heretofore  formed  and  existing  for  the  preven- 
tion of  cruelty  to  children  or  animals,  but  do  not  extend  or 
apply  to  any  association,  society,  or  corporation  which  uses 
or  specifies  a  name  or  style  the  same,  or    substantially    the 

324 


Tit.XIIa.]  COMPENSATION— URGENCY.  §  607e 

same,  as  that  of  any  previously  existing  society  or  corpora- 
tion in  this   state  organized  for  a  like  purpose. 

History:      Enacted  March   21,   1905,  Stats,   and  Amdts.    1905,   p. 
590;  see  introductory  note  to  this  title. 


§607e.  COMPENSATION  OF.  Every  society,  incor- 
porated and  organized  for  the  prevention  of  cruelty  to  ani- 
mals, or  for  the  prevention  of  cruelty  to  children,  may,  in 
each  city,  or  city  and  county,  or  county,  where  such  society 
exists,  while  actively  engaged  in  enforcing  the  provisions  of 
the  laws  of  this  state,  now  or  hereafter  enacted,  for  the  pre- 
vention of  cruelty  to  animals  or  children,  or  arresting,  or 
prosecuting  offenders  thereunder  or  preventing  cruelty  to  ani- 
mals or  children,  be  paid  as  compensation  therefor,  from  the 
city  or  county,  or  city  and  county  general  fund,  by  the  board 
of  supervisors  or  other  governing  body  thereof,  a  sum  not 
exceeding  five  hundred  dollars  per  calendar  month,  in  the 
same  manner  as  other  claims  against  said  city  or  county,  or 
city  and  county,  are  paid. 

[Urgency  measure.]  Sec.  2.  This  act  is  hereby  declared  to 
be  an  urgency  measure  within  the  meaning  of  section  1, 
article  IV  of  the  constitution,  and  is  deemed  necessary  for 
the  immediate  preservation  of  the  public  peace  and  safety. 
The  following  is  a  statement  of  facts  constituting  such  neces- 
sity: Section  six  hundred  and  seven  e  of  the  Civil  Code  per- 
mits societies  organized  for  the  prevention  of  cruelty  to  ani- 
mals to  make  arrests,  carry  on  prosecutions  and  collect  fines 
and  under  the  provisions  of  this  section  numerous  societies 
have  been  organized  and  are  being  operated  in  such  a  man- 
ner as  to  be  a  menace  to  the  public  peace  and  safety.  Ar- 
rests are  being  made  and  property  seized  without  prosecu- 
tion of  the  charges  made,  citizens  are  being  forced  to  pay 
tribute  to  outlaw  societies  to  escape  persecution,  and  peace 
officers  are  urging  the  immediate  withdrawal  of  the  right  of 

325 


§607f  CIVIL  CODE.  [Div.I,Pt.IV. 

these  societies  to  collect  fines  because  of  their  greatly  in- 
creased activity  in  these  practices,  pending  the  time  when  this 
bill  may  bcome  law. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
591;  amended  March  20,  1909,  Stats,  and  Amdts.  1909,  p.  574; 
"March  24,  1911,  Stats,  and  Amdts.  1911,  p.  487;  May  30,  1913, 
Stats,   and  Amdts.   1913,  p.   638.     lu  effect  immediately. 


§607f.     APPOINTMENT    OF     HUMANE     OFFICERS. 

Any  such  corporation  incorporated  for  the  purpose  of  the 
prevention  of  cruelty  to  animals  may  by  resolution  of  its 
board  of  directors  or  trustees  duly  entered  on  its  minutes 
appoint  any  number  of  its  members,  who  shall  be  citizens  of 
the  State  of  California  as  humane  officers.  Each  appoint- 
ment shall  be  by  separate  resolution.  Such  resolution  shall 
state  the  full  name  and  place  of  residence  and  the  business  or 
occupation  of  the  person  so  appointed  and  the  fact  that  he  is 
a  citizen  of  the  State  of  California  and  shall  also  designate 
the  number  of  the  badge  to  be  allotted  to  such  officer.  Every 
person  so  appointed  must  within  ten  days  after  his  appoint- 
ment present  to  the  judge  of  the  superior  court  in  and  for 
the  county  or  city  and  county  in  which  the  corporation  ap- 
pointing such  officer  has  its  principal  place  of  business  a 
copy  of  such  resolution  duly  certified  to  be  correct  bj^  the 
president  and  secretary  of  such  corporation  and  attested  b> 
its  seal. 

[Approval  of  judge.]  The  judge  shall  examine  such  ap- 
pointee as  to  his  qualifications  and  fitness  to  act  as  such 
officer  and,  if  he  approves  such  appointment,  shall  indorse  his 
approval  on  said  certified  copy  of  said  resolution.  Said  ap- 
pointee shall  thereupon  and  within  said  period  of  ten  days 
file  said  certified  copy  with  the  judge's  approval  indorsed 
thereon  in  the  office  of  the  county  clerk  of  said  county  or 
city  and  county  and  shall  at  the  same  time  take  and  subscribe 
the  oath  of  office  prescribed  for  constables  or  other  peace 
officers. 

326 


Tit.XIIa.]  RECORD— APPOINTMENT.  §  607f 

["Record  of  humane  officers."]  The  county  clerk  shall 
thereupon  immediately  enter  in  a  book  to  be  kept  in  his  of- 
fice and  designated  "Record  of  Humane  Officers"  the  name 
of  such  officer,  the  number  of  his  badge,  the  name  of  the  cor- 
poration appointing  him  and  the  date  of  such  filing.  At  the 
time  of  such  filing  the  county  clerk  shall  collect  from  such 
officer  a  fee  of  fifty  cents,  which  shall  be  in  full  for  all  ser- 
vices to  be  performed  by  the  county  clerk  under  the  pro- 
visions of  this  section. 

[Revocation  of  appointment.]  The  corporation  appoint- 
ing such  officer  inay  revoke  such  appointment  at  any  time  by 
resolution  of  its  board  of  directors  or  trustees,  a  duly  certi- 
fied copy  of  which  resolution  inust  within  five  days  after  its 
adoption  be  filed  in  the  office  of  the  county  clerk  in  which 
the  appointment  of  such  officer  is  recorded  and  upon  such 
filing  the  county  clerk  shall  enter  the  fact  of  such  revoca- 
tion and  the  date  of  the  filing  thereof  opposite  the  name  of 
such  officer  in  such  record  of  humane  officers. 

[Powers  of  officer.]  Such  humane  officers  after  qualifying 
as  above  provided  shall  have  power  at  all  places  within  the 
state  lawfully  to  interfere  to  prevent  the  perpetration  of  any 
act  of  cruelty  upon  any  dumb  animal  and  may  use  such  force 
as  may  be  necessary  to  prevent  the  same  and  to  that  end 
may  summon  to  their  aid  any  bystander.  They  may  make 
arrests  for  the  violation  of  any  penal  law  of  this  state  relat- 
ing to  or  affecting  animals  in  the  same  manner  as  a  constable 
or  other  peace  officer  and  may  carry  such  weapons  as  peace 
officers  are  authorized  to  carry;  except  that  in  cities  and 
counties  and  cities  of  the  first  and  first  and  one  half  classes 
no  such  humane  officer  shall  carry  any  such  weapon  unless 
permission  in  writing  so  to  do  has  first  been  granted  to  him 
by  the  board  of  police  commissioners  of  such  city  or  city  and 
county.  Every  humane  officer  must  when  making  such  ar- 
rests exhibit  and  expose  a  suitable  badge  to  be  adopted  by 
the  corporation  appointing  him  which  shall  bear  its  name 
and  a  number. 

ill 


§607g  CIVIL    CODE.  [Div.I.Pt.IV. 

[Resisting  officer.]  Any  person  resisting  a  humane  orti- 
cer  in  the  performance  of  his  duty  as  provided  in  this  sec- 
tion shall  be  guilty  of  a  misdemeanor. 

Any  person  who  has  not  been  appointed  and  qualified  as 
a  humane  officer  as  provided  in  this  section,  or  whose  ap- 
pointment has  been  revoked  as  provided  in  this  section,  who 
shall  represent  himself  to  be  or  shall  attempt  to  act  as  such 
officer  shall  be  guilty  of  a  misdemeanor. 

[False  certificate.]  Any  officer  of  such  corporation  who 
shall  knowingly  or  wilfully  sign  or  issue  any  certificate  pro- 
vided for  in  this  section,  which  shall  be  in  any  material  re- 
spect false  or  untrue,  shall  be  guilty  of  a  misdemeanor. 

[Repealing  clause.]  Sec.  2.  All  acts  and  parts  of  acts  in 
conflict  with  the  provisions  of  this  act  are  hereby  repealed. 

History:  Enacted  March  21.  1905,  Stats,  and  Amdts.  1905,  p. 
591;  amended  February  20.  1909,  Stats,  and  Amdts.  1909,  p.  33; 
May  30,  1913,  Stats,  and  Amdts.  1913,  p.  511.  In  effect  August 
10,   1913. 

§  607g.  CHILDREN  WHO  MAY  BE  ARRESTED  AND 
BROUGHT  BEFORE  A  COURT  OR  MAGISTRATE  FOR 
EXAMINATION.  Any  child  under  the  age  of  sixteen 
years  that  conies  within  any  of  the  following  descriptions 
named: 

1.  Who  is  found  begging  or  receiving  or  gathering  alms 
(whether  actually  begging,  or  under  the  pretext  of  selling  or 
offering  for  sale  anything),  or  being  in  any  street,  road,  or 
public  place  for  the  purpose  of  so  begging,  gathering,  or  re- 
ceiving alins; 

2.  Who  is  found  wandering  and  not  having  any  home  or 
settled  place  of  abode,  or  proper  guardianship,  or  visible 
means  of  subsistence; 

3.  Who  is  found  destitute,  either  being  an  orphan,  or  hav- 
ing a  vicious  parent  who  is  undergoing  penal  servitude  or 
imprisonment; 

4.  Who  frequents  the  company  of  reputed  thieves  or  pros- 

328 


Tit.XITa.]  CHILDREN — ARREST  OF,   ETC.     '  §  607g 

titutes,  or  houses  of  prostitution  or  assignation,  or  dance- 
houses,  concert  saloons,  theaters,  or  variety  halls,  or  other 
places  of  amusement  where  spiritifous,  malt,  or  vinous  liquors 
are  sold,  without  parent  or  guardian; 

5.  Who  is  engaged  or  used  for  or  in  any  business,  exhibi- 
tion, vocation,  or  purpose,  in  violation  of  any  law  of  this 
state; — 

Must  be  arrested  and  brought  before  a  court  or  magistrate, 
and  when,  upon  examination  before  such  court  or  magis- 
trate, it  appears  that  any  such  child  has  been  engaged  in  any 
of  the  aforesaid  acts,  or  comes  within  anj^  of  the  aforesaid 
descriptions;  or  when,  upon  the  examination  or  conviction 
of  any  person  having  the  custody  of  a  child,  of  a  criminal 
assault  upon  it,  the  court  or  magistrate  before  whom  such 
examination  or  conviction  is  had  deems  it  desirable  for  the 
welfare  of  such  child  that  the  person  so  examined  or  con- 
victed should  be  deprived  of  its  custody  thereafter; 

[Order  of  court  upon  examination — Commitment  of  child.] 
Such  court  or  magistrate,  when  it  deems  it  expedient  for  the 
welfare  of  such  child,  may  commit  such  child  to  an  orphan 
asylum,  corporation,  or  society  for  the  prevention  of  cruelty 
to  children,  charitable  or  other  institution,  or  make  such 
other  disposition  thereof  as  now  is  or  hereafter  may  be  pro- 
vided by  law  in  cases  of  vagrant,  truant,  disorderly,  pauper, 
or  destitute  children. 

[Power  to  institute  proceedings.]  Any  corporation,  or- 
ganized under  this  title,  or  now  existing,  for  the  prevention 
of  cruelty  to  children,  or  any  officer  or  member  thereof,  may 
institute  proceedings  under  this  section  for  the  welfare  of 
any  such  child. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp. 
591-592;   see  introductory  note  to  this  title. 


329 


§608  CIVIL  CODE.  [Div.I.Pt.IV. 


TITLE  XIII. 

CEMETERY    CORPORATIONS. 

§  608.     How   much   land   may   be   held,  and  how   disposed  of. 

§  609.     Who   are   members    eligible   to   vote   and   hold  office. 

§  610.  May  hold  personal  property,  to  what  amount.  How  dis- 
posed of. 

§  611.  May  issue  bonds  to  pay  for  grounds.  Proceeds  of  sale, 
how    disposed    of. 

§  612.     May   take  and  hold   title   to  what,  and  how. 

§  613.  When  burial  lot  Inalienable.  Who  may  not  be  buried  in 
lot. 

§  614.  Lot-owners  previous  to  purchase  to  be  members  of  the 
corporation. 

§  615.     May   sell    lands,   when. 

§  616.  May  take  and  hold  property  in  trust.  Application  of  in- 
come. 


§608.  HOW  MUCH  LAND  MAY  BE  HELD,  AND 
HOW  DISPOSED  OF.  Corporations  organized  to  estab- 
lisli  and  maintain  cemeteries  may  take,  by  purchase,  dona- 
tion, or  devise,  land,  not  exceeding  three  hundred  and  twenty 
acres  in  extent,  in  the  county  wherein  their  articles  of  in- 
corporation are  filed,  or  in  an  adjoining  county,  and  may  em- 
ploy any  surplus  moneys  in  the  treasury  thereof  for  such 
purpose;  such  lands  to  be  held  and  occupied  exclusively  as  a 
cemetery  for  the  burial  of  the  dead. 

The  lands  must  be   surveyed  and   subdivided   into   lots   or 

plats,  avenues,  and  walks,  under  order  of  the  directors,  and 
a  map  thereof  filed  in  the  ofifice  of  the  recorder  of  the  county 
wherein  the  lands  are  situated. 

[Sale,  conditions,  and  restrictions.]  Thereafter,  upon  such 
terms  and  subject  to  such  conditions  and  restrictions,  to  be 
inserted  in  the  conveyances,  as  the  by-laws  or  directors  may 

330 


Tit.XIII.]  ELIGIBILITY   TO   VOTE,    ETC.  §§609-611 

prescribe,  the  directors  may  sell  and  convey  the  lots  or  plats 
to  purchasers. 

History:  Enacted  March  21,  1ST2,  founded  upon  §  4,  Act  April 
18,  1859,  Stats.  1859,  p.  282;  amended  March  20,  1891,  Stats,  and 
Amdts.   1891,  p.   180.     In  eftect  March   20,   1891. 

§609.  WHO  ARE  MEMBERS  ELIGIBLE  TO  VOTE 
AND  HOLD  OFFICE.  Every  person  of  full  age  who  is 
proprietor  of  a  lot  or  plat  in  the  cemetery  of  the  corpora- 
tion, containing  not  less  than  two  hundred  square  feet  of 
land,  or,  if  there  be  more  than  one  proprietor  of  any  such 
lot,  then  such  of  the  proprietors  as  the  majority  of  joint  pro- 
prietors designate,  may,  in  person  or  by  proxy,  cast  one 
vote  at  all  elections  had  by  the  corporation  for  directors  or 
any  other  purpose,  and  is  eligible  to  any  office  of  the  cor- 
poration. At  each  annual  meeting  or  election,  the  directors 
must  make  a  report  to  the  proprietors  of  all  their  doings, 
and  of  the  management  and  'condition  of  the  property  and 
concerns  of  the  corporation. 

History:  Enacted  March  21,  1872,  founded  upon  §  5,  Act  April 
18,    1859,   Stats.    1859,  pp.   282-283. 

§610.  MAY  HOLD  PERSONAL  PROPERTY,  TO 
WHAT  AMOUNT.  HOW  DISPOSED  OF.  Such  corpor- 
ations may  hold  personal  property  to  an  amount  not  exceed- 
ing five  thousand  dollars,  in  addition  to  the  surplus  remain- 
ing from  the  sales  of  lots  or  plats  after  the  payments  re- 
quired in  the  succeeding  section.  Such  surplus  must  be  dis- 
posed of  in  the  improvement,  embellishment,  and  preserva- 
tion of  the  cemetery,  and  paying  incidental  expenses  of  the 
corporation,  and  in  no  other  manner. 

Hi.story:  Enacted  March  21,  1872,  founded  upon  §  4,  Act  April 
18,    1859,   Stats.    1859,  p.    282. 

§611.  MAY  ISSUE  BONDS  TO  PAY  FOR  GROUNDS. 
PROCEEDS  OF  SALE,  HOW  DISPOSED  OF.  Such  cor- 
porations may  issue  their  bonds,  bearing  interest  not  exceed- 

331 


§612  -  CIVIL    CODE.  [Div.I,Pt.IV. 

ing  twelve  per  cent  per  annum,  for  the  purchase  of  lands  for 
their  cemeteries,  payable  out  of  the  proceeds  of  the  cemetery 
and  not  otherwise;  sixty  per  cent  of  the  proceeds  of  sales  of 
lots,  plats,  and  graves  must  be  applied  at  least  every  three 
months  to  the  payment  of  the  bonds  and  interest.  Such  cor- 
porations  may  also  agree  with  the  person  or  persons  from 
whom  cemetery  lands  shall  be  purchased,  to  pay  for  such 
lands,  as  the  purchase  price  thereof,  any  specified  share  or 
portion,  not  exceeding  one  half,  of  the  proceeds  of  all  sales 
of  lots  or  plats  made  from  such  lands;  such  payment  to  be 
made  at  such  intervals  as  may  be  agreed  upon.  In  all  cases 
where  cemetery  lands  shall  be  purchased  and  agreed  to  be 
paid  for  in  the  manner  last  provided,  the  prices  for  lots  or 
plats  specified  in  the  by-laws,  rules,  or  regulations  first 
adopted  by  such  association,  or  prescribed  in  the  agreement 
between  the  cemetery  and  the  person  or  persons  from  whom 
the  cemetery  lands  were  purchased,  shall  not  be  changed 
without  the  written  consent  of  a  majority  in  interest  of  the 
persons  from  whom  such  lands  were  purchased,  their  heirs, 
representatives,  or  assigns. 

History:  Enacted  March  21,  1872,  founded  upon  §  7,  Act  April 
18,  1859,  Stats.  1859,  p.  281,  as  amended  Act  January  13,  1864, 
Stats.  1863-4,  p.  12,  and  Act  April  16,  1880,  Code  Amdts.  1880 
(C.  C.  pt.),  p.   12.     In  effect  April   16,  1880. 


§612.  MAY  TAKE  AND  HOLD  TITLE  TO  WHAT, 
AND  HOW.  Any  corporation  organized  to  establish  and 
maintain,  or  to  improve,  a  cemetery,  may  take  and  hold  title 
to  any  cemetery  lot,  plot  or  grave,  devised  or  given  to  it  in 
trust  for  the  specific  purpose  of  perpetually  caring  for  the 
same. 

History;  Enacted  March  21,  1872,  founded  upon  §  9,  Act  April 
18,  1859,  Stats.  1859,  p.  284;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  384,  held  unconsti- 
tutional, see  history,  §  4  ante;  amended  March  26,  1901,  Stats, 
and  Amdts.  1900-1,  p.   814. 

332 


Tit.XIII.]  ALIENABILITY— BURIAL.  §§613,614 

§613.  WHEN  BURIAL  LOT  INALIENABLE.  WHO 
MAY  NOT  BE  BURIED  IN  LOT.  Whenever  an  inter- 
ment is  made  in  any  lot  or  plat  transferred  to  individual 
owners  by  the  corporation,  the  same  thereby  becomes  for- 
ever inalienable,  and  descends  in  regular  line  of  succession  to 
the  heirs  at  law  of  the  owner.  When  there  are  several  owners 
of  interests  in  such  lot  or  plat,  one  or  more  may  acquire  by 
purchase  the  interest  of  others  interested  in  the  fee  simple 
title  thereof,  but  no  one  not  an  owner  acquires  interest  or 
right  of  burial  therein  by  purchase;  nor  must  any  one  be 
buried  in  any  such  lot  or  plat  not  at  the  time  owning  an  in- 
terest therein,  or  who  is  not  a  relative  of  such  owner,  or  of 
his  wife,  except  by  consent  of  all  jointly  interested; 

[Alienability  revived,  how.]  Provided,  however,  that  when 
all  the  bodies  buried  in  any  such  lot  shall  have  been  removed 
therefrom,  with  the  consent  of  the  owners  of  such  lot,  it 
shall  be  lawful  for  the  then  owners  of  such  lot  to  sell  and 
transfer  the  same  by  deed;  and  any  such  sale  and  transfer 
heretofore  made  is  hereby  declared  to  be  valid  and  effectual 
to  transfer  the  title  to  the  purchaser,  any  law  to  the  con- 
trary thereof  notwithstanding. 

History:  Enacted  March  21,  1872,  founded  upon  §  11,  Act  April 
18,  1859,  Stats.  1859,  p.  284;  amended  February  10,  1885,  Code 
Amdts.  1885,  pp.  1-2;  amended  by  Code  Commission,  Act  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  385,  held  unconstitutional, 
see  history,  §  4  ante. 

§614.  LOT-OWNERS  PREVIOUS  TO  PURCHASE 
TO  BE  MEMBERS  OF  THE  CORPORATION.  When 
grounds  purchased  or  otherwise  acquired  for  cemetery  pur- 
poses have  been  previously  used  as  a  burial-ground,  those 
who  are  lot-owners  at  the  time  of  the  purchase  continue  to 
own  tjie  same,  and  are  members  of  the  corporation,  with  all 
the  privileges  a  purchase  of  a  lot  from  the  corporation  con- 
fers. 

History:  Enacted  March  21,  1872,  founded  upon  §  12,  Act 
April  18,  1859,  Stats.  1859,  p.  285. 

333 


§§615,616  CIVIL  CODE.  [Div.I.Pt.IV. 

§  615.  MAY  SELL  LANDS,  WHEN.  Cemetery  corpora- 
tions may  sell  lands  held  by  them  upon  obtaining  an  order 
for  that  purpose  from  the  superior  court  of  the  county  where 
the  lands  are  situated.  Before  making  the  order,  proof  must 
be  made  to  the  satisfaction  of  the  court  that  notice  of  the 
application  for  leave  to  sell  has  been  given  by  publication  in 
such  manner  and  for  such  time  as  the  court  has  directed, 
and  that  the  lands  are  not  required  for  and  are  not  in  use 
for  burial  purposes,  and  that  it  is  for  the  interest  of  the  cor- 
poration that  such  lands  be  sold.  The  application  must  be 
made  by  petition,  and  any  member  of  the  corporation  may 
oppose  the  granting  of  the  order  by  affidavit  or  otherwise. 

History:  Enacted  March  4,  1S89,  Stats,  and  Amdts.  1SS9, 
p.    61.      In  effect  March  4,   18S9. 

§616.  MAY  TAKE  AND  HOLD  PROPERTY  IN 
TRUST.  APPLICATION  OF  INCOME.  Any  corpora- 
tion organized  to  establish  and  maintain,  or  to  improve,  a 
cemetery,  may  take  and  hold  any  property  bequeathed, 
granted,  or  given  to  it  in  trust,  to  apply  the  proceeds  or  in- 
come thereof  to  any  and  all  of  the  following  purposes: 

[Purposes  for  which  may  hold.]  To  the  improvement  or 
embellishment  of  such  cemetery  or  of  any  lot  therein;  or  to 
the  erection,  renewal,  repair,  or  preservation  of  any  monu- 
ment, fence,  or  other  structure  in  such  cemetery;  or  to  the 
planting  or  cultivation  of  trees,  shrubs,  or  plants  in  or  around 
such  cemetery,  or  any  lot  therein;  or  to  the  improving,  or- 
namenting, or  embellishing  of  such  cemetery,  or  any  lot 
therein,  in  any  other  mode  or  manner  not  inconsistent  with 
the  purposes  for  which  such  cemetery  was  established  or  is 
being  maintained. 

[Investment  of  proceeds  and  income,  in  what.]  Such 
property  and  the  proceeds  or  income  thereof  shall  be  in- 
vested and  reinvested  in  bonds  of  the  United  States,  or  of 
this   state,   or   of  any  municipality  of  this  state    or    in    first 

334 


Tit. XIII.]  INVESTMENT  OF  INCOME.  §616 

mortgages  on  real  estate,  or  in  centrally  located  income- 
producing  improved  real  estate  in  any  city,  or  city  and  coun- 
ty in  this  state,  if  such  investment  is  not  repugnant  to  the 
terms  of  the  bequest,  grant  or  gift. 

History:     Enacted   March   26,   1895,   Stats,   and  Amdts.   1895,   p. 
162;   amended  March    25,    1901,    Stats,   and   Amdts.    1900-1,  p.    814. 


335 


§§620,621  CIVIL  CODE.  [Div.I,Pt.IV. 


TITLE  XIV. 

AGRICULTURAL,    FAIR    CORPORATIONS. 

§  620.     May   acquire  and  hold   real   estate,   how   much. 

§  621.     Shall  not  contract   debts   or   liabilities   exceeding  amount 

in   treasury. 
§  622.     Not  for  profit.     May  fix  fee,  etc.,  for  membership. 

§620.  MAY  ACQUIRE  AND  HOLD  REAL  ESTATE, 
HOW  MUCH.  Agricultural  fair  corporations  may  purchase, 
hold,  or  lease  any  quantity  of  land,  not  exceedfng  in  the 
aggregate  one  hundred  and  sixty  acres,  with  such  buildings 
and  improvements  as  may  be  erected  thereon,  and  may  sell, 
lease,  or  otherwise  dispose  of  the  same,  at  pleasure.  This 
real  estate  must  be  held  for  the  purpose  of  erecting  buildings 
and  other  improvements  thereon,  to  promote  and  encourage 
agriculture,  horticulture,  mechanics,  manufactures,  stockrais- 
ing,  and  general  domestic  industry. 

History:  Enacted  March  21,  1872,  founded  upon  §  2,  Act 
March    12,    1859,    Stats.    1S59,   p.    105. 

§621.  SHALL  NOT  CONTRACT  DEBTS  OR  LIA- 
BILITIES    EXCEEDING     AMOUNT     IN     TREASURY. 

Such  corporation  must  not  contract  any  debts  or  liabilities 
in  excess  of  the  amount  of  money  in  the  treasury  at  the  time 
of  contract,  except  for  the  purchase  of  real  property,  for 
which  they  may  create  a  debt  not  exceeding  five  thousand 
dollars,  secured  by  mortgage  on  the  property  of  the  corpora- 
tion. The  directors  who  vote  therefor  are  personally  liable 
for  any  debt  contracted  or  incurred  in  violation  of  this  sec- 
tion. 

History:  Enacted  March  21,  1872,  founded  upon  §  5,  Act 
March  12,  1859,  Stats.  1859.  p.   105.      " 


Tit.XIV.]  FEE  FOR  MEMBERSHIP.  §622 

§622.  NOT  FOR  PROFIT.  MAY  FIX  FEE,  ETC., 
FOR  MEMBERSHIP.  Agricultural  fair  corporations  are 
not  conducted  for  profit,  and  have  no  capital  stock  or  in- 
come other  than  that  derived  from  charges  to  exhibitors  and 
fees  for  membership,  which  charges,  together  with  the  term 
of  membership  and  mode  of  acquiring  the  same,  must  be 
provided  for  in  their  by-laws.  Such  fees  must  never  be 
greater  than  to  raise  sufficient  revenue  to  discharge  the  debt 
for  the  real  estate  and  the  improvements  thereon,  and  to  de- 
fray the  current  expenses  of  fairs. 

History:  Enacted  March  21,  1872,  founded  upon  §  4,  Act 
March  12,   1859,  Stats.   1859,  p.   105. 


337 


§629  CIVIL   CODE.  [Div.l,Pt.IV. 


[Title  XV,  and  each  and  every  section  thereof,  was  repealed 
by  Act  March  21,  1905  (Stats,  and  Amdts.  1905,  p.  592),  and  a 
n£w  title  substituted  therefor.  Stats,  and  Amdts.  1905,  pp.  59^- 
594.  This  substituted  title  is  an  exact  reproduction,  with  the 
addition  of  §  630a,  of  the  substitution  by  the  Code  Commission, 
Act  March  16,  1901  (Stats,  and  Amdts.  1900-1,  pp.  385-386,  429), 
which  was  held  unconstitutional,  see  history  ,   §  4  ante.] 

TITLE  XV. 

CORPORATIONS   TO   FURNISH   LIGHT   FOR   PUBLIC   USE. 

§  629.  Companies  must  supply  gas,  electricity,  etc.,  to  buildings 
w^ithin   one   hundred  feet  of   the   main. 

§  630.     When   corporations   may   refuse   to   supply   gas. 

§  630a.  When  corporations  may  refuse  to  supply  electric  current 
for  light. 

§  631.     Right    to    enter    buildings   for    inspection. 

§  632.     Right   to   shut  off  supply   of  gas  or  electricity. 

§629.  COMPANIES  MUST  SUPPLY  GAS,  ELEC- 
TRICITY, ETC.,  TO  BUILDINGS  WITHIN  ONE  HUN- 
DRED FEET  OF  THE  MAIN.  Upon  the  application  in 
writing  of  the  owner  or  occupant  of  any  building  or  premises 
distant  not  more  than  one  hundred  feet  from  any  gas  or 
steam  main,  or  direct  or  primary  wire  of  the  corporation, 
and  payment  by  the  applicant  of  all  money  due  from  him, 
the  corporation  must  supply  gas,  electricity,  steam  or  heat  as 
required  for  such  building  or  premises,  and  cannot  refuse  on 
the  ground  of  any  indebtedness  of  any  former  owner  or  oc- 
cupant thereof,  unless  the  applicant  has  undertaken  to  pay 
the  same.  If,  for  the  space  of  ten  days  after  such  applica- 
tion, the  corporation  refuses  or  neglects  to  supply  the  gas, 
electricity,  steam  or  heat  required,  it  must  pay  to  the  appli- 
cant the  sum  of  fifty  dollars  as  liquidated  damages  and  five 
dollars  per  day,  as  liquidated  damages  for  every  day  such  re- 
fusal or  neglect  continues  thereafter. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
593;   amended  April   12,   1911,  Stats,   and  Amdts.    1911,  p.    887. 

338 


Tit.XV.]  REFUSAL  TO  SUPPLY  GAS,  ETC.  §§630-631 

§630.  WHEN  CORPORATIONS  MAY  REFUSE  TO 
SUPPLY  GAS.  No  corporation  is  required  to  lay  service 
pipe  where  serious  obstacles  exist  to  laying  it,  unless  the  ap- 
plicant, if  required,  deposits  in  advance,  with  the  corpora- 
tion, a  sum  of  money  sufficient  to  pay  the  cost  of  laying  such 
service  pipe,  or  his  proportion  thereof. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
593;    see   introductory   note   to   this   title. 


§630a.  WHEN  CORPORATIONS  MAY  REFUSE  TO 
SUPPLY  ELECTRIC  CURRENT  FOR  LIGHT.  No  cor- 
poration is  required  to  construct  lines  for  the  supply  of  elec- 
tric current  for  light  where  serious  obstacles  exist,  nor  shall 
such  corporation  be  required  to  supply  such  current  from  a 
direct  wire  at  a  distance  too  remote  from  the  generating 
station,  to  insure  a  sufficient  supply;  nor  is  such  corporation 
required  to  supply  electric  current  for  light  from  a  primary 
wire  carrying  current  of  high  voltage,  unless  the  applicant 
deposit,  in  advance,  a  sum  of  money  sufficient  to  pay  the 
actual  costs  of  such  construction  and  for  the  appliances  re- 
quired to  supply  electric  current  with  safety  at  the  proper 
voltage. 

HLstory:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
593;    see   introductory   note    to   this    title. 

§  631.  RIGHT  TO  ENTER  BUILDINGS  FOR  INSPEC- 
TION. Any  owner,  manager  or  superintendent  of  gas  or 
electric  light  works,  or  agent  of  such  owner,  manager,  or 
superintendent,  exhibiting  written  authority,  signed  by  such 
owner,  manager  or  superintendent,  or  any  agent  of  a  gas  or 
electric  light  corporation  exhibiting  written  authority  signed 
by  the  president  or  secretary  thereof  for  such  purpose,  may 
enter  any  building  or  premises  lighted  with  gas  or  electricity 
supplied  by  such  owner  or  corporation,  to  inspect  the  gas 
meters  or  electric  meters  therein  to  ascertain  the  quantity  of 

339 


§632  CIVIL    CODE.  [Div.I.Pt.IV. 

gas  or  electricity  supplied  or  consumed.  Every  owner  or 
occupant  of  such  building  who  hinders  or  prevents  such  en- 
try or  inspection  must  pay  to  the  owner  or  corporation  the 
sum  of  fifty  dollars  as  liquidated  damages. 

History:      Enacted  March  21,   1905,   Stats,   and  Amdts.    1905,   p. 
593;    see  introductory  note   to   this   title. 


§632.  RIGHT  TO  SHUT  OFF  SUPPLY  OF  GAS  OR 
ELECTRICITY.  All  gas  or  electric  light  corporations  may 
shut  off  the  supply  of  gas  or  electricity  from  any  person  who 
neglects  or  refuses  to  pay  for  the  gas  or  electricity  sup- 
plied, or  the  rent  of  any  meter,  pipes,  wires,  fittings  or  ap- 
pliances, provided  by  the  corporation,  as  required  by  his 
contract;  and  for  the  purpose  of  shutting  off  the  gas  or  elec- 
tricity in  such  case  any  employee  of  the  corporation  may  en- 
ter the  building  or  premises  of  such  person,  between  the 
hours  of  eight  o'clock  in  the  forenoon  and  six  o'clock  in  the 
afternoon,  of  any  day  and  remove  therefrom  any  property 
of  the  corporation  used  in  supplying  gas  or  electricity. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
594;  see  introductory  note  to  this  title. 


340 


Tit. XVI.]  BUILDING,  ETC.,  ASSOCIATIONS.  §633 


[The  original  Title  XVI,  Part  IV.  of  Division  One,  embracing 
§§  639-648,  was  repealed  by  Act  March  31,  1891  (Stats,  and 
Amdts.  1891,  p.  252),  except  as  to  building  and  loan  associations 
then  organized  and  doing  business,  and  enacting  in  their  place 
and  stead  §§  633-64S1/4,  and  subjecting  existing  building  and  loan 
associations  theretofore  existing  to  examination  by  the  bank 
commissioners.  By  Act  March  23,  1907  (Stats,  and  Amdts.  1907, 
p.  923,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  416),  this  title  "and 
each  and  every  part  and  section  thereof,  is  hereby  repealed,  and 
a  new  title  XVI  is  hereby  enacted  and  substituted  to  take  the 
place  thereof  in  said  code,   to   read  as  follows":] 

TITLE  XVI. 

BUILDING  AND  COAN  ASSOCIATIONS. 

§  633.     Formation,   powers,   and   organization. 
§  634.     Capital  stock   [Dues,  shares,   etc.]. 
§  635.     Retiring   free   shares. 
§  636.     Maturity  of  stock. 
§  637.     Loans.      Prohibitions.      Penalties. 
§  63S.     Security  for  loans.     Interest. 

§  63Sa.  Withdrawal    or    surrender   of    stock,    notice    [repealed]. 
§  639.     Arrears   in  payments.      Defaults.      Forfeitures. 
§  640.     Purchase  of  real  estate. 
§  641.     Profits  and  losses. 
§  642.     Withdrawals. 

§  642a.  Receipts  to  be  applied  to  demands  unpaid  for  year. 
§  643.     Membership. 

§  644.     State   supervision    and   control. 
§  645.     Annual   report. 

§  646.      Building  and  loan   associations   must  make   deposit. 
§  647.     Investment  in  and  loans  upon  bonds. 
■§  648.     Building   and   loan   association.      Definition    of  term. 
§  64Sa.  Building    and    loan    associations.        Formation      with      or 
without  guarantee. 

§633.  FORMATION,  POWERS,  AND  ORGANIZA- 
TION. Building  and  loan  associations  as  hereinafter  in  this 
title  deiined,  shall  have  power  to  receive  money  and  accu- 
mulate funds  to  be  loaned,  and  to  loan  the  same  to  their 
shareholders,    investors   and   others;    to   permit   shareholders 

341 


§633  CIVIL    CODE.  [Div.I.Pt.IV. 

and  investors  to  withdraw  part  or  all  of  their  pai'ments,  in- 
vestments or  stock  deposits,  and  to  prescribe  the  terms  and 
conditions  of  such  withdrawal;  to  cancel  shares  of  stock,  the 
payments  on  which  have  been  withdrawn;  to  receive  money 
and  to  execute  certificates  therefor,  which  must  specify  the 
date,  amount,  rate  of  interest,  and  when  the  principal  and 
interest  are  payable,  and  also  the  withdrawal  value  thereof 
at  the  end  of  each  year;  to  borrow  money  for  the  purpose  of 
making  loans  and  of  paying  withdrawals  and  maturities;  and 
shall  have  such  further  powers  as  inaj^  be  specifically  set 
forth  under  this  title;  provided,  however,  that  no  such  asso- 
ciation shall,  at  any  time,  have  or  carry  upon  its  books,  for 
any  member  or  investor,  any  demand,  commercial  or  check- 
ing account  or  any  credit  to  be.  withdrawn  upon  the  presen- 
tation of  any  negotiable  check  or  draft. 

[Purposes  for  which  formed.]  Every  such  corporation 
hereafter  formed,  in  setting  forth  for  the  purposes  for  which 
it  is  formed,  shall  state,  in  its  articles  of  incorporation,  that 
it  is  formed  to  encourage  industry,  frugality,  home  building, 
and  savings  among  its  shareholders  and  members;  the  ac- 
cumulation of  savings;  the  loaning  to  its  shareholders  and 
members  of  the  moneys  or  funds  so  accumulated,  with  the 
profits  and  earnings  thereon,  and  the  repayment  to  each  of 
his  savings  and  profits,  whenever  they  have  accumulated  to 
the  full  par  value  of  the  shares,  or  at  any  time  when  he  shall 
desire  the  same  or  when  the  corporation  shall  desire  to  re- 
pay the  same,  as  it  may  be  provided  in  the  by-laws;  and 
shall  also  state  that  it  is  formed  for  all  the  purposes  specified 
in  this  title. 

History:  Original  section  enacted  Marcli  31,  1S91,  Stats,  and 
Amdts.  1891,  pp.  252-253;  see  introductory  not  to  tliis  title; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  923,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  416;  June  10,  1913,  Stats,  and  Amdts.  1913,  p.  552.  In  effect 
August  10,  1913.     Repealing-  clause  post   §  648. 

342 


Tit.XVI.]  STOCK— DUES,    SHARES,    ETC.  §634 

§634.     CAPITAL      STOCK.     [DUES,     SHARES,    ETC.] 

The  capital  of  every  such  corporation  shall  be  divided  into 
shares  of  the  matured  or  par  value  of  one  hundred  or  tv^o 
hundred  dollars  each,  as  provided  by  the  articles  of  incor- 
poration, and  shall  be  paid  in  by  the  subscribers  in  the  man- 
ner provided  by  the  by-laws.  All  such  payments  shall  be 
called  dues.  Certificates  shall  be  issued  to  each  shareholder 
on  the  first  payment  of  dues  by  him. 

[Pledge  shares — Free  shares.]  Shares  pledged  as  security 
for  the  payment  of  a  loan  shall  be  called  pledge  shares,  and 
all  others,  free  shares.  All  shares  matured  and  surrendered 
or  canceled,  shall  become  the  property  of  the  corporation 
and  may  be  reissued. 

[Capital  accumulated  in  certain  forms.]  The  capital  shall 
consist  of  the  accumulated  dues  together  with  the  appor- 
tioned profits  of  the  corporation,  and  shall  be  accumulated 
by  the  issuance  of  shares  in  "installment"  form  and,  where 
the  by-laws  shall  so  provide,  in  any  or  all  the  following 
forms,  viz:  "full  paid,"  "pass  book  or  juvenile,"  and  "guar- 
antee." 

[Installment  shares  either  "serial"  or  "permanent."  (a) 
Installment  shares  shall  be  either  "serial"  or  "permanent"  in 
form.  When  issued  in  "serial"  form  the  periodical  dues  on 
shares  in  each  series  shall- commence  with  the  date  of  the 
issue  of  such  series  and  the  holder  must  pay  such  dues  and 
such  amounts  per  share  and  at  such  times  as  the  by-laws 
may  provide,  and  such  payments  must  continue  on  each 
sliare  until,  with  the  profits  allotted  thereto,  it  reaches  its 
matured  value  or  is  withdrawn  or  canceled.  On  all  such  is- 
sues the  dividends  shall  be  apportioned  or  credited  equally 
to  each  share  in  each  series.  No  share  of  a  prior  series  shall 
be  issued  after  the  issue  of  shares  in  a  new  series,  except  by 
way  of  transfer.  Shares  issued  in  "permanent"  form  may  be 
issued  at  any  time  and  the  dividends  thereon  may  be  credited 
in  the  pass  books  of  the  members.  Shares  of  either  form 
may  be  issued  in  "classes"   with  a  different  periodical   pay- 

343 


§634  CIVIL  CODE.  [Div.I.Pt.IV. 

ment  for  each  class  designation,  to  be  specified  in  the  by- 
laws, and  shall  be  issued  with  full  participation  in  the  profits 
subject  to  apportionment  as  dividends. 

[Full  paid  shares.]  (b)  Full  paid  shares  shall  be  shares 
upon  which  a  single  payment  of  dues  amounting  to  one  hun- 
dred or  two  hundred  dollars  per  share  shall  be  paid  at  the 
time  of  subscription  and  upon  which  the  holder  shall  be  en- 
titled to  either  a  full  participation  in  the  net  profits  or  to  an 
agreed  rate  of  dividends  not  exceeding  six  per  cent  per  an- 
num, paj'able  semiannually  in  cash,  to  be  specified  in  the  body 
of  the  certificate  issued.  All  such  shares  may  be  issued  in 
separate  classes  as  to  participation,  under  regulations  to  be 
provided  in  the  by-laws  and  which  must  be  fully  set  forth 
in  or  upon  each  certificate  issued. 

[Pass  book  or  juvenile  shares.]  (c)  Pass  books  or  juven- 
ile shares  are  shares  which  shall  participate  in  the  apportion- 
ment of  net  profits  and  be  credited  therewith  at  a  rate  not 
less  than  seventy-five  nor  more  than  ninety  per  centum  of  the 
rate  apportioned  to  installment  shares,  as  the  by-laws  shall 
determine,  and  upon  which  the  dues  may  be  paid  in  at  such 
times  and  in  such  amounts  as  the  holder  thereof  may  elect 
until  said  shares  reach  their  matured  value  or  are  withdrawn. 
Such  shares  shall  be  withdrawable  under  rules  to  be  pro- 
vided in  the  by-laws  and  fully  set  forth  in  the  pass  books  is- 
sued. The  matured  value  of  this  class  of  shares  shall  not 
exceed  in  volume  twenty-five  per  centum  of  the  matured 
value  of  all  other  shares  in  force.  No  membership  fee,  fine 
or  forfeiture  shall  be  chargeable  against  such  shares. 

[Guarantee  stock.]  (d)  Guarantee  stock  shall  be  stock, 
provided  by  the  by-laws,  to  be  set  apart  and  sold  as  a  fixed, 
permanent  or  guarantee  capital.  When  any  such  stock  has 
been  once  so  set  apart,  sold  and  issued,  it  shall  thereafter 
remain  as  a  fixed,  permanent  and  guarantee  capital,  and 
shall  be  subjected  to  all  the  conditions  and  liabilities  attach- 
ing to  the  paid  in  capital  stock  of  other  classes  of  corpora- 

344 


Tit.X\'I.]  RESERVE   FUND— AMOUNT   OF.  §634 

tions.  Such  guarantee  stock  shall  protect  and  guarantee  all 
other  stockholders  and  creditors  against  any  loss,  a:nd  when 
once  paid  it  must  be  kept  unimpaired. 

[Reserve  fund  ten  per  cent  of  liability.]  (e)  Every  cor- 
poration specified  in  this  title  issuing  installment  or  full  paid 
investment  certificates,  or  both,  shall  at  all  times  have  issued 
and  fully  paid  for,  either  an  amount  of  guarantee  capital 
stock,  or  permanent  non-withdrawable  capital  stock,  or  both 
such  guarantee  capital  stock  and  permanent  non-withdraw- 
able capital  stock,  or  a  reserve  fund  equal  to  ten  per  cent 
of  the  aggregate  amount  of  its  liability  on  its  said  install- 
ment investment  certificates  and  full  paid  up  investment  cer- 
tificates; provided,  however,  that  the  aggregate  of  guarantee 
capital  stock,  or  permanent  non-withdrawable  capital  stock, 
or  both  such  guarantee  capital  stock  and  permanent  non-with- 
drawable capital  stock,  or  a  reserve  fund,  of  every  building 
and  loan  association  issuing  installment  or  full  paid  invest- 
ment certificates,  or  both,  must  equal  the  following  per- 
centages of  its  investment  certificate  liabilities: 

1.  Ten  per  centum  of  any  amount  up  to  and  including  one 
million  dollars. 

2.  Seven  and  one-half  per  centum  of  any  amount  in  excess 
of  one  million  dollars,  up  to  and  including  two  million  dol- 
lars. 

3.  Five  per  centum  of  any  amount  in  excess  of  two  million 
dollars,  up  to  and  including  five  million  dollars. 

[May  provide  majority  of  directors,  stockholders.]  (f) 
Corporations  specified  in  this  title,  issuing  guaranteed  stock, 
may  provide  in  their  by-laws  that  a  majority  of  the  board 
of  directors  shall  be  selected  from  the  holders  of  such  stock. 

[Entrance  or  withdrawal  fees.]  (g)  Every  such  corpora- 
tion shall  also  have  power,  by  its  by-laws,  to  charge  an  en- 
trance or  withdrawal  fee,  for  each  share  of  stock  it  may  is- 
sue, not  exceeding  one  dollar  on  each  share, 

[Transfer  fee.]  And  also  to  charge  a  transfer  fee,  not  ex- 
ceeding ten  cents  on  each  share,  all  of  which  fees  shall  be 

345 


§§635,636  CIVIL  code.  [Div.I.Pt.IV. 

accounted  for  by  the  corporation  like  other  funds  of  the 
association.  No  other  fee,  charge  or  deduction  shall  ever 
be  made  or  permitted  to  be  made  against  any  shareholder,  or 
against  any  of  his  shares  hereafter  issued,  or  the  dues  paid  in 
thereon  for  the  purpose  of  creating  a  fund  to  be  used  in  the 
payment  of  current  or  running  expenses.  (Amendment  ap- 
proved June  10,  1913;  stats.  1913,  p.  553.  In  effect  August 
10,  1913.) 

History:  Original  section  enacted  March  21,  1891,  Stats,  and 
Amdts.  1891,  p.  253;  former  section  repealed  and  present  section 
enacted  March  23,  1907,  Stats,  and  Amdts.  1907,  p.  924,  Kerr's 
Stats,  and  Amdts.  1906-7,  p.  417;  amended  June  10,  1913,  Stats, 
and  Amdts.  1913,  p.  553;  May  3,  19i5,  Stats,  and  Amdts.  1915,  p. 
S36.     lu  effect  August  S,  1915. 


§635.  RETIRING  FREE  SHARES.  The  directors  may 
in  their  discretion,  under  the  regulations  prescribed  by  the 
by-laws,  retire  any  free  shares  of  stock,  other  than  those  of 
the  guarantee  stock,  by  enforcing  the  withdrawal  thereof,  but 
whenever  the  withdrawal  of  any  shares  is  to  be  enforced,  the 
holders  thereof  must  be  paid  the  amount  actually  paid  in,  and 
the  full  amount  of  earnings  at  the  date  of  retirement;  pro- 
vided that  shares  of  instalment  stock  shall  not  be  forced  out 
until  after  they  shall  have  become  four  years  old. 

Hi.istory:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  254;  see  introductory  note  to  this  title;  amended 
"by  Code  Commission,  Act  March  16,  1901,  Stats,  and  Amdts. 
1900-1,  p.  386,  held  unconstitutional,  see  history,  §  593  ante, 
former'  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  925,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  418.     In  effect  after  July  1,  1907.     Repealiug  clau.se  post  §  648. 


§  636.  MATURITY  OF  STOCK.  When  any  stock  shall 
have  reached  its  matured  value,  payment  of  dues  thereon 
shall  cease.  Borrowing  stockholders  whose  loans  are  fully 
paid  shall  have  their  securities  released  and  returned  to  them. 
Holders  of  free  shares   of  stock  shall  be  paid   the   matured 

346 


Tit. XVI.]      LOANS — PROHIBITIONS— PENALTIES.  ^  (^^7 

value  thereof  out  of  the  funds  of  the  corporation,  with  inter- 
est at  such  rate  as  the  by-laws  shall  provide,  from  the  time 
the  board  of  directors  shall  declare  such  shares  to  have  been 
matured,  until  paid;  but- at  no  time  shall  more  than  one-half 
of  the  receipts  of  the  corporation  be  applicable  to  the  pay- 
ment of  matured  shares  without  the  consent  of  said  board. 
The  order  of  the  payment  of  matured  shares,  if  not  other- 
wise determined  by  the  by-laws,  shall  be  in  the  numerical 
order  of  issuance. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  254;  see  introductory  note  to  this  title;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats,  and 
Amdts.  1907,  p.  925,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  418. 
lu  effect  after  July  1,  1907.     Repealiug  clause  post   §  648.  , 

i 

§637.     LOANS.  PROHIBITIONS.  PENALTIES. 

Loans  may  be  made  upon  the  "mutual  plan"  or  upon  the 
"definite  contract  plan."  Loans  made  upon  the  mutual  plan 
shall  be  accompanied  by  a  pledge  of  shares  having  a  matured 
or  par  value  equal  to  the  face  of  the  loan.  Definite  contract 
loans  shall  be  repayable  in  a  definite  number  of  equal  peri- 
odical installments,  to  be  named  in  the  note  or  obligation, 
each  in  an  amount  sufficient  for  the  aggregate  of  all  to  repay 
the  principal  of  the  loan  together  with  interest  on  the  un- 
paid periodical  balances,  within  the  time  and  at  the  rate 
agreed  upon. 

[Officers  may  not  borrow.]  It  shall  be  unlawful  for  any 
director  or  officer  of  any  corporation  governed  by  this  title, 
directly  or  indirectly,  for  himself,  or  as  a  partner  or  agent  for 
others,  to  borrow  any  of  the  funds  of  such  corporation,  and 
any  officer  or  director  violating  the  provisions  of  this  sec- 
tion shall  be  guilty  of  a  felony.  Any  officer  or  director  of 
any  such  corporation  who  consents  on  behalf  of  such  cor- 
poration to  make  a  loan  to  any  officer  or  director  of  such  cor- 
poration shall  be  guilty  of  a  felony,  and  shall  also  be  per- 
sonally liable  to  the  corporation  for  the  full  amount  thereof. 

347 


§638  CIVIL  CODE.  [Div.I,Pt.IV. 

[No  loan  on  own  guaranteed  stock.]  It  shall  be  unlawful 
for  any  building  and  loan  association,  corporation  or  society 
operating  under  the  provisions  of  this  title  to  loan  any  of  its 
funds  upon  any  of  its  own  guarantee  stock  or  upon  its  per- 
manent nonwithdrawable  capital  stock  as  security.  Any  offi- 
cer or  director  of  an  association  who  shall  make  any  such 
loan  for  and  on  behalf  of  any  association  shall  be  personally 
liable  to  the  corporation  for  the  full  amount  thereof,  and 
shall  also  be  deemed  guilty  of  a  felony. 

[No  loan  on  mining  stock.]  It  shall  be  unlawful  for  any 
building  and  loan  association,  corporation  or  society,  operat- 
ing under  the  provisions  of  this  title,  to  loan  any  of  its  funds 
upon  the  security  of,  or  to  invest  any  of  its  funds  in  any 
mining  shares  or  mining  stocks,  or  in  the  stocks  or  bonds  ot 
any  corporation,  other  than  in  this  title  provided;  and  any 
officer  or  director  who,  on  behalf  of  any  such  corporation, 
shall  make  any  such  loan  or  investment,  or  who  shall  con- 
sent thereto,  shall  be  personally  liable  to  the  corporation  for 
the  whole  amount  of  any  such  loan  or  investment,  and  shall 
also  be  guilty  of  a  felony. 

History:.  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  pp.  254-255;  see  introductory  note  to  this  title; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  926,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  418;  June  10,  1913,  Stats,  and  Amdts.  1913,  p.  551.  In  effect 
August   10,   1913.      Repealing  clause   post    §  648. 

§638.     SECURITY     FOR     LOANS.     INTEREST.      For 

every  loan  made  a  note  or  obligation  must  be  executed  by 
the  borrower,  secured  by  a  first  mortgage  or  deed  of  trust 
upon  unencumbered  real  estate  having  an  appraised  value  of 
not  less  than  twenty-five  per  cent  in  .excess  of  the  face  of 
the  loan  (except  such  loans  as  may  be  made  upon  the  se- 
curity of  bonds  specified  in  section  six  hundred  and  forty- 
seven);  or  in  lieu  of  a  mortgage  or  deed  of  trust,  loans  to 
the  extent  of  not  exceeding  ninety  per  cent  of  the  then  with- 
drawable value,  may  be  made  upon  the  pledge  of  free  shares 

348 


Tit.XVL]  ARREARS   AND    DEFAULTS,    ETC.         §§  638a,  639 

or  certificates  as  security  for  their  repayment.  The  board 
of  directors  may  from  time  to  time  fix  the  rate  of  interest  to 
be  charged  on  loans.  A  borrower  may  at  any  time  repay  his 
loan  together  with  interest  or  arrears  due  thereon  and  upon 
the  surrender  of  the  shares,  or  certificate  pledged  as  security 
therefor. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  255;  amended  February  25,  1897,  Stats,  and 
Amdts.  1897,  p.  30;  March  11,  1901,  Stats,  and  Amdts.  1900-1,  p. 
268;  see  introductory  note  to  this  title;  former  section  repealed 
"and  present  enacted  March  23,  1907,  Stats,  and  Amdts.  1907,  p. 
926,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  419;  June  10,  1913,  Stats, 
and  Amdts.  1913,  p.  551.  In  effect  August  10,  1913.  Repealing 
clause  post  §  648. 

§  638a.  WITHDRAWAL  OR  SURRENDER  OF  STOCK, 
NOTICE    [repealed]. 

Hi.story:  Original  section  enacted  March  22,  1905,  Stats,  and 
Amdts.  1905,  p.  753;  repealed  March  23,  1907,  Stats,  and  Amdts. 
1907,  p.   923.     In  effect  July  1,  1907. 


§639.  ARREARS  IN  PAYMENT.  DEFAULTS.  FOR. 
FEITURES.  Whenever  any  nonborrowing  member  shall  be 
six  months  in  arrears  in  the  payment  of  his  dues  upon  free 
shares,  the  secretary  may  give  him  notice  thereof  in  writing, 
and  a  statement  of  his  arrearages,  by  mailing  the  same  to 
him  at  his  last  post-office  address  given  by  him  to  the  asso- 
ciation; and  if  he  shall  not  pay  all  arrearages  within  two 
months  thereafter,  the  board  of  directors  may,  at  their  op- 
tion, declare  his  shares  forfeited,  and  at  the  time  of  such  for- 
feiture, the  withdrawal  value  thereof  shall  be  determined 
and  stated,  and  the  defaulting  member  shall  be  entitled  to 
withdraw  the  same  without  interest,  upon  such  notice  as 
shall  be  required  of  a  withdrawing  shareholder.  Whenever 
a  borrower  shall  be  three  months  in  arrears  in  the  payment 
of  his  dues  or  interest  or  loan  installments,  the  whole  loan 
shall  become  due  at  the  option  of  the  board  of  directors,  and 

349 


§§640.641  CIVIL  CODE.  [Div.I.Pt.IV. 

they  may  proceed  to  enforce  collection  upon  the  securities 
held  by  the  association.  The  withdrawal  value,  at  the  time 
of  exercising  such  option,  of  all  shares  pledged  as  collateral 
security,  shall  be  applied  to  the  payment  of  the  loan,  and 
said  shares  from  that  time  shall  be  deemed  surrendered  to 
the   association  and   canceled. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  255;  see  introductory  note  to  this  title;  former 
section  repealed  and  present  enacted  March  23,  1907>  Stats, 
and  Amdts.  1907,  p.  927,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  419. 
lu   effect    after   July    1.    1907.      Repealing   clause   post   §  648. 

§640.  PURCHASE  OF  REAL  ESTATE.  Any  such  as- 
sociation may  purchase  at  any  sale,  public  or  private,  any 
real  estate  upon  which  it  may  have  a  mortgage,  judgment, 
lien,  or  other  encumbrance,  or  in  w^hich  it  may  have  an  in- 
terest, and  may  sell,  convey,  lease,  or  mortgage  the  same  at 
pleasure  to  any  person  or  persons. 

History:     Original   section  enacted  March   31,   1891,   Stats,   and 

*  Amdts.   1891,  p.   255;   see  introductory   note  to  this   title;   former 

section    repealed    and    present    enacted    March    23,    1907,    Stats. 

and  Amdts.   1907,  p.  927,  Kerr's  Stats,   and  Amdts.  1906-7,  p.   420. 

fn   effect  after   July    1,    1907.      Repealing   clau.se   post    §  648. 

§641.  PROFITS  AND  LOSSES.  Profits  and  losses  shall 
be  apportioned  at  least  annually,  and  shall  be  apportioned  to 
all  shares  in  each  class  at  the  time  of  such  apportionment, 
according  to  the  actual  or  book  value  thereof.  If  the  guar- 
antee capital  herein  provided  for,  if  any  there  be,  together 
with  the  reserve  fund,  or  if  the  reserve  fund,  where  there  be 
no  guarantee  capital,  shall  not  equal  five  per  cent  of  the  out- 
standing loans  at  the  time  of  each  apportionment  of  profits, 
the  directors  shall  set  aside,  as  a  reserve  fund,  not  less  than 
five  per  cent  of  the  net  profits  accruing  since  the  last  prior 
apportionment,  and  shall  continue  so  to  do  until  said  fund 
shall  amount  to  at  least  five  per  cent  of  the  loans  in  force,  at 
which  figure  said  fund  shall  thereafter  be  maintained.     Said 

350 


Tit.XVI.]       DIVIDEND   FUND — WITHDRAWALS.  §  642 

reserve  fund  shall  at  all  times  be  available  to  meet  losses 
arising  from  any  source  not  heretofore  provided  to  be  as- 
sumed by  the  guarantee  capital. 

[Dividend  fund — Reserve.]  Every  such  corporation  hav- 
ing a  paid-in  guarantee  capital  stock,  may  provide  in  their 
by-laws,  that  an  amount  not  exceeding  one  per  cent  per  an- 
num on  the  average  loans  in  force,  shall  be  set  aside  from 
and  out  of  the  net  profits,  at  each  annual  distribution  thereof, 
— or  a  proportionate  amount  at  each  semi-annual  distribution, 
— from  vi^hich  to  declare  dividends  on  and  provide  a  reserve 
fund  that  shall  be  specially  applicable  thereto.  At  least  one- 
tenth  of  the  amount  so  set  aside  shall  be  carried  to  such  re- 
serve fund  until  the  same  shall  amount  to  at  least  fifty  per 
cent  of  the  paid-in  guarantee  stock. 

History:  Original  section  enacted  March  31,  1S91,  Stats,  and 
Amdts.  1891,  p.  255;  see  introductory  note  to  this  title;  amended 
by  Code  Commission,  Act  March  16,  1901,  Stats,  and  Amdts. 
1900-1,  p.  387,  held  unconstitutional,  see  history,  §  593  ante; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  927,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  420.     lu  effect  after  July  1,  1907.     Repealing  clause  post  §  648. 

§  642.  WITHDRAWALS.  A  stockholder  or  investor,  de- 
siring to  withdraw  from  any  such  corporation  or  to  surren- 
der a  part  or  all  of  his  stock,  or  investment  certificate,  may 
do  so  by  giving  thirty  days  notice,  in  writing,  of  his  inten- 
tion or  desire  so  to  do.  On  the  expiration  of  such  notice,  he 
is  entitled  to  receive  the  full  amount  paid  in  upon  the  stock 
or  investment  certificate  surrendered,  exclusive  of  the  en- 
trance or  withdrawal  fee,  together  with  such  proportion  of 
the  earnings  thereon  as  the  bj'-laws  may  provide,  or  as  maj' 
be  fixed  by  the  board  of  directors;  but  not  more  than  one- 
half  of  the  monthly  receipts  in  any  one  month  must  be  ap- 
plied to  withdrawals  for  that  month,  without  the  consent  of 
the  board  of  directors,  and  no  stockholder  must  be  permitted 
to  withdraw  whose  stock  is  pledged  to  the  corporation  as 
security  for  a  loan,  until   such  loan  is   fully  paid.     All  with- 

351 


§642a  CIVIL  CODE.  [Div.I.Pt.IV. 

drawals  must  be  paid  in  succession  in  the  order  that  the  no- 
tices of  intention  are  given.  Whenever  the  demands  of 
withdrawing  stockholders  or  investors  exceed  the  money  ap- 
plicable to  their  payment,  the  notices  of  intention  to  with- 
draw must  be  registered  in  the  order  of  filing  and  payments 
thereon  must  be  made  in  succession,  in  the  order  that  such 
notices  were  filed  and  registered.  The  board  of  directors  may 
permit  the  withdrawal  of  a  part  of  the  accumulations  to  the 
credit  of  a  stockholder  or  member,  on  shares  of  instalment 
stock  not  issued  in  serial  form,  without  thereby  reducing  the 
number  of  shares  held  by  him. 

History:  Original  section  enacted  March  31,  1S91,  Stats,  and 
Amdts.  1891,  pp.  255-256;  see  introductory  note  to  this  title; 
former  section  repealed  and  present  enacted  Marcli  23,  1907, 
Stats,  and  Amdts.  1907,  p.  927,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  421.     In  effect  after  July  1,  1907.     Repealing  clause  post  §  648. 


§642a.  RECEIPTS  TO  BE  APPLIED  TO  DEMANDS 
UNPAID  FOR  YEAR.  Whenever  an  application  for  with- 
drawal of  free  shares  or  certificates  shall  have  been  on  file, 
or  the  payment  of  matured  shares  demanded,  and  either  shall 
have  remained  unpaid  for  a  period  of  one  year,  all  the  re- 
ceipts of  the  association  from  dues,  interest,  premium,  loans 
repaid,  and  the  proceeds  of  all  other  investments,  shall,  after 
the  payment  of  expenses  and  general  indebtedness,  be  applied 
toward  the  payment  of  withdrawals  and  maturities;  and  the 
board  of  directors  or  the  official  vested  by  law  with  powers 
of  state  supervision  and  license  maj'  direct  that  such  pay- 
inents  shall  be  made  upon  a  rateable  and  proportionate  basis. 

[Demands  unpaid  for  two  years;  business  may  be  taken 
over.]  Whenever  such  applications  or  demands,  whether 
heretofore  or  hereafter  made,  have  been  on  file  and  remain 
unpaid  in  whole  or  in  part  for  more  than  two  years  the  offi- 
cial vested  by  law  with  powers  of  state  supervision  and  li- 
cense may,  in  his  discretion,  forthwith  take  possession  of  the 

352 


Tit.XVI.]  MEMBERSHIP — CONTROL.  §§  543^  644 

property  and  business  of  such  association,  and  retain  such 
possession  until  its  affairs  be  finally  liquidated  in  the  manner 
provided  by  law  for  the  liquidation  of  associations  by  him. 

Historj':       Enactment    approved    April     28,     1915,     Stats,     and 
Amdts.   1915,  p.   239.     In  effect  August  8,  1915. 


§643.  MEMBERSHIP.  Any  person  of  full  age  and 
sound  mind  may  become  a  member  of  an  association  by  tak- 
ing one  or  more  shares  therein  and  subscribing  to  the  by- 
laws, and  annexing  to  his  signature  his  post-office  address. 
A  minor  may  hold  shares  in  the  name  of  a  parent,  guardian, 
or  next  friend,  as  trustee.  The  shares  of  stock  in  any  such 
corporation  held  by  any  person,  to  the  extent  of  one  thou- 
sand dollars,  shall  be  exempt  from  execution. 

Histor>':  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  256;  see  introductory  note  to  this  title;  amended 
by  Code  Commission,  Act  March  16,  19'01,  Stats,  and  Amdts. 
1900-1,  p.  387,  held  unconstitutional,  see  history,  §  593  ante; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  928,  Kerr's  Stats. 'and  Amdts.  1906-7, 
p.   421.     In  effect  after  July  1,  1907.     Repealing  clause  post   §648. 

§644.     STATE    SUPERVISION    AND    CONTROL.     All 

building  and  loan  associations,  as  in  this  title  defined,  doing 
business  in  this  state,  shall  be  under  the  supervision  and  con- 
trol of  such  official  or  officials  as  are  by  law  vested  there- 
with; and  except  in  the  manner  provided  in  this  title,  no  cor- 
poration, firm,  or  association  shall  conduct  or  carry  on  the 
business  of  accumulating  the  savings  of  its  shareholders, 
members,  or  investors,  and  loaning  such  accumulations  to 
them,  in  the  manner  of  building  and  loan  associations. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  256;  see  introductory  note  to  this  title;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats, 
and  Amdts.  1907,  p.  928.  In  effect  after  July  1,  1907.  Repealing 
clause   post    §  648. 

"  353 


§§645,646  CIVIL  code.  [Div.I,Pt.IV. 

§  645.  ANNUAL  REPORT.  Every  association  organized 
under  the  provisions  of  this  title,  and  every  other  association 
doing  a  similar  business,  shall  annually  make  a  full  report, 
in  writing,  of  the  affairs  and  condition  of  such  corporation, 
within  thirty  days  after  its  annual  meeting,  to  the  official  or 
officials  vested  with  powers  of  state  supervision  and  license. 
Such  reports  shall  be  verified  by  the  oath  of  the  officers 
making  the  same,  and  a  copy  of  the  same  shall  be  delivered 
to  every  stockholder,  from  the  office  of  the  corporation,  who 
may  call  for  such  report. 

[Further  reports.]  Every  association  shall  make  any 
further  reports  which  the  said  officials  may  require,  and  in 
such  form  and  as  to  such  matters  relating  to  the  conduct  of 
the  business  of  the  association  as  such  official  or  officials 
may  designate. 

[False  statements  in  reports  perjury,  when.]  Any  wilfully 
false  statement  in  making  and  verifying  said  report  shall  be 
perjury.  Any  such  association  which  shall  fail  to  furnish  the 
said  official  or  officials  any  such  report  required,  within  thirty 
days  after  demand,  shall  forfeit  the  sum  of  ten  dollars  per 
day  for  every  day  such  report  shall  be  delayed  or  withheld, 
which  may  be  recovered  in  an  action  brought  by  the  attor- 
ney-general in  the  name  of  the  people  of  this  state;  and  all 
moneys  so  recovered  shall  be  paid  to  the  treasurer  of  this 
state,  who  shall  pay  the  same  into  such  fund  as  may  be  pro- 
vided by  law,  for  the  purposes  of  the  official  or  officials 
vested  with  power  of  supervision  and  license. 

History:  Original  section  enacted  March  31,  1S91,  Stats,  and 
Amdts.  1891,  pp.  256-257;  see  introductory  note  to  this  title; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  928,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  421.     lu  effect  after  July  1,  1907.     Repealing  clause  post  §  648. 

§646.  BUILDING  AND  LOAN  ASSOCIATIONS  MUST 
MAKE  DEPOSIT.  GUARANTEE  FUND.  Every  build- 
ing and  loan  association,  and  every  other  corporation,  asso- 
ciation or  society  organized  under  and  by  virtue  of  the  laws 

354 


Tit.XVI.]  DEPOSIT— GUARANTEE    FUND.  §646 

of  any  other  state  or  territory  or  of  any  foreign  country,  for 
the  purpose  of  conducting  and  carrying  on  a  business  of  a 
character  similar  to  that  authorized  by  this  title,  or  whose 
by-laws,  rules,  prospectus,  contracts  or  methods  of  business 
provide  for  the  conducting  or  carrying  on  the  business  of 
accumulating  the  periodical  payments  or  savings  of  its  share- 
holders, members  or  investors  in  the  manner  of  building  and 
loan  associations,  or  as  authorized  and  provided  in  this  title, 
desiring  to  enter  the  State  of  iCalifornia  for  the  transaction 
of  business  or  for  selling  its  bonds,  debentures,  certificates, 
shares  of  stock,  shares  of  membership,  contracts  or  other 
similar  securities,  must  first  comply  with  the  requirements 
of  sections  four  hundred  five  and  four  hundred  eight  of  the 
Civil  Code  and  immediately  thereafter  deposit  with  the  offi- 
cial vested  by  law  with  state  supervision  and  license  not 
less  than  fifty  thousand  dollars  in  lawful  money  of  the  United 
States  or  in  bonds  of  the  United  States  or  of  the  State  of 
California,  or  of  any  county,  municipality  or  school  district 
of  said  'State,  or  of  any  public  utility  corporation,  or  of  any 
irrigation  district  in.  said  state,  the  bonds  issued  by  which 
district  are  legal  investments  for  savings  banks  or  any  notes 
or  bonds  secured  by  mortgage  or  deed  of  trust  payment  of 
which  is  guaranteed  by  a  policy  of  mortgage  insurance,  or 
mortgage  participation  certificates,  issued  by  a  mortgage  in- 
surance company  in  accordance  with  the  provisions  of  chap- 
ter eight,  title  two,  part  four  of  division  first  of  the  Civil 
Code  or  in  lieu  thereof  promissory  notes  secured  by  first 
mortgages  or  deeds  of  trust  upon  real  estate  located  within 
this  state,  satisfactory  to  the  official  vested  by  law  with  state 
supervision  and  license  of  building  and  loan  associations,  all 
duly  assigned  or  endorsed  in  blank,  to  be  held  by  the  said 
official  as  a  guarantee  fund  for  the  protection  and  indemnity 
of  residents  of  the  State  of  California  who  shall  invest  in 
any  of  its  bonds,  debentures,  shares,  contracts,  agreements 
or  other  securities,  or  with  whom  it  shall  do  business. 

[License.]     It   must  also  procure  from  the  official  vested 
by   law    with    state    supervision   and   license   of  building  and 

355 


§646  CIVIL    CODE.  [Div.I,Pt.IV. 

loan  associations,  the  license  provided  for  building  and  loan 
and  similar  corporations  and  associations,  paying  the  statu- 
tory fee  therefor  before  entering  upon  the  transaction  of 
business,  and  annually  renew  the  same. 

[Securities  may  be  substituted.]  With  the  consent  of  the 
said  official  vested  by  law  'with  state  supervision  and  license 
any  of  the  securities  deposited  as  herein  provided  may  be 
withdrawn  at  any  time  upon  the  substitution  and  deposit  of 
others  of  form  and  character  herein  specified 'and  of  like  or 
greater  net  value,  so  long  as  the  aggregate  net  convertible 
value  of  all  equals  or  exceeds  the  amount  named  herein. 
The  fund  thus  created  is  not  to  be  foreclosed  or  realized  upon 
except  for  the  liquidation  of  a  final  judgment  in  favor  of  resi- 
dents of  California  who  were  investors  in  any  of  the  above 
mentioned  securities  of  such  foreign  company,  corporation  or 
association,  and  then  onlj^  after  certified  proof  thereof  has 
been  filed  with  the  custodian. 

Except  as  above  provided  securities  deposited  as  herein 
specified  shall  not  be  withdrawn  until  satisfactory  proof  of 
the  liquidation  of  all  liabilities  to  residents  of  California, 
approved  by  the  official  A^ested  by  law  with  state  supervision 
and  license,  shall  be  filed  with  the  custodian,  when  all  may 
then  be  withdrawn. 

[Penalty  for  non-compliance.]  Any  person  or  persons 
who  shall  be  found  in  the  state,  as  principal,  agent,  solicitor, 
or  in  any  other  capacity,  soliciting  or  conducting  the  busi- 
ness of  selling,  disposing  of,  or  taking  or  soliciting  subscrip- 
tions for  the  sale  of  any  of  the  forms  of  bonds,  debentures, 
shares,  contracts,  agreements  or  other  securities  of  any  such 
foreign  company,  corporation  or  association  which  has  not 
complied  with  all  the  requirements  of  this  section  shall  be 
deemed  guilty  of  a  misdemeanor  punishable,  upon  convic- 
tion, by  a  fine  of  not  less  than  one  hundred  nor  more  than 
one  thousand  dollars  or  by  imprisonment  in  the  county  jail " 
for  not  less  than  one  nor  more  than  twelve  months,  or  by 
both  such  fine  and  imprisonment. 

356 


Tit.XVL]  INVESTMENTS,  ETC.,  ON  BONDS.  §§  647,  648 

History:  Original  section  enacted  Miarch  31,  1891,  Stats,  and 
Amdts.  1891,  p.  257;  former  section  repealed  and  present  section 
enacted  March  23,  1907,  Stats,  and  Amdts.  1907,  p.  929,  Kerr's 
Stats,  and  Amdts.  1906-7,  p.  422;  amended  May  19,  1915,  Stats, 
and  Amdts.   1915,  p.   573.     In  effect  August  8,  1915. 


§  647.     INVESTMENT  IN  AND  LOANS  UPON  BONDS. 

Any  building  and  loan  association  may  invest  in  or  loan  upon 
bonds  of  the  United  States,  of  the  State  of  California,  or  of 
any  county,  municipality  or  school  district  of  said  state,  or 
of  any  public  utility  corporation,  and  may  also  invest  in 
or  loan  upon  notes  or  bonds  secured  by  mortgage  or  deed 
of  trust,  payment  of  which  is  guaranteed  by  a  policy  of  mort- 
gage insurance,  or  mortgage  participation  certificates,  issued 
by  a  mortgage  insurance  company  in  accordance  vi^ith  the 
provisions  of  chapter  VIII,  of  title  II  of  part  IV  of  division 
first  of  the  Civil  Code,  the  total  of  which  investments  at  any 
time  shall  not  exceed  twenty-five  per  centum  of  the  assets 
of  such  association; 

[Approval  by  official  vested  with  power  of  supervision.] 
Provided,  however,  that  any  such  loan  or  investment  made 
by  such  association  must  be  approved  by  the  official,  or  offi- 
cials, vested  with  the  powers  of  supervision  and  license. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  257;  repealed  and  present  section  enacted  March 
23,  1907,  Stats,  and  Amdts.  1907,  p.  929,  Kerr's  Stats,  and  Amdt.=. 
1906-7,  p.  423;  amended  May  3,  1915,  Stats,  and  Amdts.  1915,  p. 
317.     In  effect  August  8,  1915. 

§648.  BUILDING  AND  LOAN  ASSOCIATION. 
DEFINITION  OF  TERM.  The  name  "building  and  loan 
association"  as  used  in  this  title  shall  include: — 

Firstr  Corporations  formed  for  the  purpose  of  receiving 
money  from,  and  loaning  money  to,  their  members  only. 

Second.  Corporations,  associations,  companies,  copartner- 
ships, and  individuals  transacting  the  business  of  issuing  or 
selling  bonds,   debentures,   certificates,   shares    of    stock,    or 

357 


§648a  CIVIL  CODE.  [Div.I,Pt.IV. 

other  papers,  by  whatever  name  said  instruments  may  be 
designated,  whether  said  instruments  are  issued  for  money 
paid  in  advance  or  for  money  to  be  paid  in  installments,  but 
with  an  intent,  either  implied  or  expressed,  that  the  proceeds 
or  accumulated  installments  thereof  and  thereon  are  to  be 
withdrawable  or  repayable,  with  accumulated  profits,  at 
some  future  fixed,  or  indefinite  date  of  maturity;  provided 
always,  that  this  section  does  not  include  persons,  copart- 
nerships or  corporations  engaged  in  any  kind  of  banking 
business. 

[In  effect  when.]  Sec.  2.  This  act  shall  take  effect  and  be 
in  force  from  and  after  its  passage. 

Act  of  March  23,  1907,  contained  the  following  sections: 

Status  of  present  contracts.  Sec.  2.  Nothing  contained  in 
this  act  shall  alter,  impair,  or  render  void  any  certificate  of 
stock  heretofore  issued  or  contract  heretofore  made  by  any 
such  corporation. 

[Repealing  clause.  Sec.  3.  All  acts  in  conflict  with  this  act 
are  hereby  repealed.] 

History:  Enacted  March  31,  1S91,  Stats,  and  Amdts.  1891,  p. 
257;  former  section  repealed  and  present  section  enacted  Marcli 
23.  1907,  Stats,  and  Amdts.  1907,  p.  929,  Kerr's  Stats,  and 
Amdts.  1906-7,  p.  423;  amended  March  22,  1909,  Stats,  and 
Amdts.   1909,  p.   609. 

§648a.  BUILDING  AND  LOAN  ASSOCIATIONS. 
FORMATION    WITH     OR     WITHOUT     GUARANTEE. 

Building  and  loan  associations  may  be  formed  under  this 
title  with  or  without  guarantee  or  other  capital  stock,  with 
all  the  rights,  powers  and  privileges  and  subject  to  all  the 
restrictions  and  liabilities  set  forth  in  this  title.  If  formed 
without  any  capital  stock  or  with  guarantee  capital  stock 
only,  the  working  capital  may  be  accumulated  by  the  issue  ot 
membership  shares,  units  or  certificates  having  a  paid  up  or 
ultimate  matured  installment  value  of  one  hundred  or  two 
hundred  dollars  each,  and  entitled  to  all  the  rights,  powers 
and  privileges  and  subject  to  all  the  restrictions  and  liabili- 

358 


Tit.XVI.]  WITHOUT  GUARANTEE.  §  648a 

ties  provided  in  this  title  for  shares  of  authorized  capital 
stock  of  a  similar  class.  Any  building  and  loan  association 
heretofore  formed  may  re-incorporate  under  the  provisions 
of  this  section  and  may  substitute  membership  shares,  units 
er  certificates  of  similar  classes  for  its  outstanding  or  author- 
ized shares  of  capital  stock,  other  than  guarantee  capital 
stock,  by  the  unanimous  vote  of  its  board  of  directors  and 
by  a  vote  or  written  assent  of  the  stockholders  representing 
at  least  two-thirds  of  the  subscribed  capital  stock  and  by 
filing  amended  articles  of  incorporation  with  the  county 
clerk  of  the  countj^  in  which  the  corporation's  principal  place 
of  business  is  located  and  a  copj^  of  said  amended  articles, 
certified  by  such  count}-  clerk,  in  the  office  of  the  secretary 
of  state. 

History:      Enacted   March   25,    1909.    Stats,   and   Amdts.    1.909,    p. 
721. 


359 


§§649,650  CIVIL  CODE.  [Div.I.Pt.IV. 


[This  is  a  new  title  added  by  Act  March  14,  1S85,  Stats,  and 
Amdts.    1885,   p.    132.] 

TITLE   XVII. 

♦ 

COLLEGES   AND    SEMINARIES    OF    LEARNING. 

§  649.     Articles   of  incorporation;   contents  of. 

§  650.      Board   of   trustees;    classification   of. 

§  651.     Existing  corporations   may   reincorporate   under   tliis  act. 

§649.  ARTICLES  OF  INCORPORATION;  CON- 
TENTS OF.  Any  number  of  persons  who  may  desire  to 
establish  a  college  or  seminary  of  learning  may  incorporate 
themselves  as  provided  in  this  part,  except  that  in  lieu  of  the 
requirements  of  section  two  hundred  ninety,  the  articles  of 
incorporation  shall  contain: 

L  The  name  of  the  corporation. 

2.  The  purpose  for  which  it  is  organized. 

3.  The  place  where  the  college  or  seminary  is  to  be  con- 
ducted. 

4.  The  number  of  its  trustees,  which  shall  not  be  less  than 
five  nor  more  than  thirty  and  the  names  and  residences  of 
the  trustees.  The  term  for  which  the  trustees  named  and 
their  successors  are  to  hold  office  may  also  be  stated.  If  it 
is  desired  that  the  trustees,  or  any  portion  of  them,  shall  be- 
long to  any  organization,  society,  or  church,  such  limitation 
shall  be  stated. 

5.  [Capital  stock.]  If  said  corporation  is  to  have  capital 
stock,  the  amount  of  its  capital  stock  and  the  number  of 
shares  into  which  it  is  divided,  and  the  amount  actually  sub- 
scribed and  by  whom. 

History:  Enacted  March  14,  1SS5,  Stats,  and  Amdts.  1885,  p. 
133;   amended  April  2,   1911,   Stats,  and  Amdts.   1911,  p.   583. 

§650.     BOARD     OF     TRUSTEES;     CLASSIFICATION 

OF.     Unless  otherwise  provided  in  the  articles  of  incorpora- 

360 


Tit.XVII.]     TRUSTEES— QUORUM— VACANCIES.  §650 

tioii  the  board  of  trustees  shall,  as  soon  as  organized,  so 
classify  themselves  that  one-fifth  of  their  number  shall  go 
out  of  office  every  year,  and  thereafter  the  trustees  shall  hold 
office  for  five  years. 

[Quorum.]  A  majority  of  the  trustees  shall  constitute  a 
quorum  for  the  transaction  of  business,  except  when  the 
number  of  trustees  exceeds  thirteen  they  may,  in  the  by- 
laws, provide  that  not  less  than  seven  shall  constitute  a  quo- 
rum. The  office  of  the  corporation  shall  be  at  the  college 
or  seminary  or  at"  such  place  as  shall  be  designated  by  the 
board  of  trustees. 

[Powers.]     The  trustees  shall  have  the  power: 

[To  elect  president.]  1.  To  elect,  by  ballot,  annually  one 
of  their  number  as  president  of  the  board. 

[To  fill  vacancies.]  2.. Upon  the  death,  reriioval  out  of  the 
state,  or  other  vacancy  in  the  office,  or  expiration  of  the  term 
of  any  trustee,  to  elect  another  in  his  place  who  shall  hold 
office  for  the  time  and  under  the  conditions  prescribed  in  the 
by-laws  of  the  corporation;  provided,  that  where  there  are 
graduates  of  the  institution,  such  graduates  may,  under  such 
rules  as  the  board  shall  prescribe,  nominate  persons  to  fill 
vacancies  in  the  board  of  trustees.  Such  nominations  shall 
be  considered  by  the  board,  but  it  may  reject  any  or  all  such 
nominations,  and  of  its, own  motion  appoint  others. 

3.  To  elect  additional  trustees;  provided,  the  whole  num- 
ber elected  shall  never  exceed  thirty  at  any  one  time. 

4.  To  declare  vacant  the  seat  of  any  trustee  who  shall  ab- 
sent himself  from  eight  succeeding  meetings  of  the  board. 

5.  [To  hold  property.]  To  receive  and  hold,  by  purchase, 
gift,  devise,  bequest,  or  grant,  real  or  personal  property  for 
educational  purposes  connected  with  the  corporation,  or 
for  the  benefit  of  the  institution. 

6.  To  sell,  mortgage,  lease  and  otherwise  use  and  dispose  of 
the  property  of  the  corporation  in  such  manner  as  they  shall 
deem  most  conducive  to  the  prosperity  of  the  corporation. 

7.  To  direct  and  prescribe  the  course  of  study  and  disci- 
pline to  be  observed  in  the  college  or  seminary. 

361 


§651  CIVIL  CODE.  [Div.LPt.IV. 

8.  To  appoint  a  president  of  the  college  or  seminary,  who 
shall  hold  his  office   during  the  pleasure  of  the  trustees. 

9.  To  appoint  such  professors,  tutors,  and  other  officers 
as  they  shall  deem  necessary,  who  shall  hold  their  offices 
during  the  pleasure  of  the  trustees. 

10.  To  grant  such  litferary  honors  as  are  usually  granted 
by  any  university,  college,  or  seminary  of  learning  in  the 
United  States  and  in  testimony  thereof  to  give  suitable  di- 
plomas under  their  seal,  and  the  signature  of  such  officers  of 
the  corporation  and  the  institution  as  they  shall  deem  expe- 
dient. 

11.  To  fix  salaries  of  the  president,  professors,  and  other 
officers  and  employees  of  the  college  or  seminary. 

12.  Subject  to  the  consent  and  approval  of  the  organiza- 
tion, society  or  church  to  which  it  is  required  by  the  articles 
of  incorporation  that  said  trustees  shall  belong,  to  make  all 
by-laws  and  ordinances  necessary  and  proper  to  carry  into 
effect  the  preceding  powers  and  necessary  to  advance  the 
interests  of  the  college  or  seminary;  provided,  that  no  by- 
laws or  ordinances  shall  conflict  with  the  constitution  or 
laws  of  the  United  States,  or  of  this  state. 

History:  Enacted  March  14,  1885,  Stats,  and  Amdts.  1885,  p. 
133;  amended  March  20,  1909,  Stats,  and  Amdts.  1909,  p.  oSS; 
June  6,  1913,  Stats,  and  Amdts.  1913,  p.  400.  In  effect  August  10, 
1913. 


§651.  EXISTING  CORPORATIONS  MAY  REINCOR- 
PORATE UNDER  THIS  ACT.  Any  educational  corpora- 
tion, or  body  claiming  to  be  such,  now  existing,  may,  by  a 
unanimous  vote  of  those  of  its  trustees  present  at  a  special 
meeting  called  for  that  purpose,  and  of  which  due  notice  shall 
be  given  to  each  trustee,  convey  all  its  property,  rights,  and 
franchises,  to  a  corporation  organized  under  this  title.  The 
fact  that  due  notice  of  the  meeting  was  given  to  each  trus- 
tee shall  be  conclusively  proven  by  the  entries  in  the  minutes 

362 


Tit.XVII.]        REINCORPORATION  UNDER   ACT.  §651 

of  the  corporation  or  body  making  the  conveyance.  Said 
minutes  shall  be  certified  to  be  correct  by  the  president  and 
secretary. 

History:      Enacted   March    14,    1885,    Stats,    and   Amdts.    1885,  p. 
134.      In   effect   March    14,    1885. 


363 


§652  CIVIL  CODE.  [Div.I.Pt.IV. 


[A  new  title  added  by  Act  February  23,  1893,  Stats,  and 
Amdts.   1893,  p.   4.] 

TITLE  XVIII. 

CONSOLIDATION   OF   COLLEGES   AND   INSTITUTIONS   OF 
HIGHER  EDUCATION. 

§  652.     Societies   and   organizations   authorized   to   consolidate. 
§  653.     Specific    grants,    etc.,  must  not  be   diverted. 

§652.  SOCIETIES  AND  ORGANIZATIONS  AU- 
THORIZED TO  CONSOLIDATE.  Whenever  any  benev- 
olent, religious  or  fraternal  organization  or  society,  having 
a  grand  lodge,  assembly,  conference  or  other  legislative  or 
representative  head  in  the  State  of  California,  having  two  or 
more  colleges  or  institutions  of  higher  education  under  its 
patronage,  shall,  for  the  purpose  of  greater  efficiency  and 
simplicity  in  the  administration  of  its  educational  interests, 
desire  to  consolidate  such  institutions  under  one  manage- 
ment, ^uch  organization  or  society  shall  be  and  is  hereby 
authorized  to  consolidate  such  institutions  under  one  manage- 
ment by  complying  with  the  following  provisions: 

[New  corporation — Trustees — Term  of  office.]  Such  grand 
lodge,  assembly,  conference  or  other  legislative  or  represen- 
tative head  having  authorizd  a  consolidation  -of  its  institu- 
tions, a  new  corporation  shall  be  formed.  The  board  of  trus- 
tees of  the  new  corporation  shall  at  first  consist  of  the  per- 
sons constituting  the  boards  of  trustees  of  the  several  insti- 
tutions, respectively  thus  consolidating,  and  others;  provided 
the  number  of  trustees  shall  not  exceed  forty-five.  The 
board  of  trustees  shall  be  so  classified  that  the  term  of  office 
of  one-third  of  its  number  shall  expire  each  year;  the  suc- 
cessors of  such  trustees,  as  their  terms  expire,  shall  be 
elected  by  such  grand  lodge,  assembly,  conference  or  other 
legislative  or  representative  head,  at  its  annual  meeting. 

364 


Tit.XVIII.]    REDUCTION   OF    BOARD — GRANTS.  §653 

The  said  board  of  trustees  shall  report  annually  to  the 
grand  lodge,  conference,  assembly  or  other  legislative  oi 
representative  head  controlling  it,  the  condition  of  affairs  of 
such  corporation,  and  the  amount  and  manner  of  its  receipts 
and  expenditures. 

[Reduction  of  board  of  trustees — Limitation.]  After  the 
two  or  more  colleges  or  institutions  of  higher  education  un- 
der the  patronage  of  any  benevolent,  religious  or  fraternal 
organization  or  society,  having  a  grand  lodge,  assembl}^ 
conference  or  other  legislative  or  representative  head  in  the 
State  of  California  shall  have  become  consolidated  as  here- 
inabove directed  or  specified,  the  board  of  trustees  of  the 
new  corporation,  consisting  at  first  of  the  persons  consti- 
tuting the  boards  of  trustees  of  the  several  institutions, 
respectively  thus  consolidated,  may  be  reduced  in  number 
after  said  board  of  trustees  shall  have  transacted  the  busi- 
ness of  said  corporation  for  a  period  of  five  years  after  such 
consolidation.  Said  number  shall  be  reduced  by  the  grand 
lodge,  assembly,  conference  or  other  legislative  or  represen- 
tative head  of  said  colleges  or  institutions  of  higher  educa- 
tion in  the  following  manner,  viz.:  At  any  annual  session 
of  such  grand  lodge,  assembly,  conference  or  other  legisla- 
tive or  representative  head,  there  shall  be  dropped  from  the 
number  of  trustees  to  be  elected  at  that  session  of  such  grand 
lodge,  assembly,  conference  or  other  legislative  or  reprsen- 
tative  head  such  a  number  of  trustees  as  those  present  at 
such  session  shall  determine,  provided  however,  that  at  no 
time  shall  the  number  of  trustees  composing  such  board  be 
less  than  fifteen. 

History:  Enacted  February  23,  1S93,  Stats,  and  Amdts.  1893, 
p.  4;  amended  March  9,  1895,  Stats,  and  Amdts.  1895,  p.  40; 
March  15,  1909,  Stats,  and  Amdts.  1909,  p.  385. 

§653.  SPECIFIC  GRANTS,  ETC.,  MUST  NOT  BE  DI- 
VERTED. The  several  boards  of  trustees  of  the  institutions 
thus  consolidated  shall  be  and  are  hereby  authorized  and  di- 

365 


§653  CIVIL  CODE.  [Div.I.Pt.IV. 

rected  to  transfer  all  property,  real  and  personal,  held  by 
them,  to  the  new  corporation,  as  herein  constituted,  together 
with  all  powers,  privileges,  and  authority  conferred  upon  or 
enjoyed  by  them  under  their  respective  charters  or  acts  of 
incorporation.  The  new  corporation  receiving  such  prop- 
erty shall  assume  all  indebtedness  and  liabilities  of  such  in- 
stitutions as  are  thus  consolidated,  but  shall  not  transfer 
such  property  from  one  location  to  another,  except  by  an 
affirmative  vote  of  not  less  than  three  fourths  of  the  said 
board  of  trustees  of  the  new  corporation,  nor  divert  specific 
grants,  donations,  or  bequests  from  the  purposes  for  which 
such  grants,  donations,  or  bequests  were  made.  That  after 
the  boards  of  trustees  have  conveyed  the  property,  real  and 
personal,  of  the  various  institutions  to  the  new  corporation, 
as  hereinabove  provided,  and  the  same  has  been  accepted  by 
the  said  new  corporation,  then  the  franchises  held  bj'  the 
corporations  thus  consolidating  shall  cease,  and  the  said 
corporations  shall  be   thereby  dissolved. 

Hi-story:      Enacted  February   23,    1893,  Stats,   and  Amdt.s.    1S93, 
p.   4;   amended  March  9,  1895,  Stats,  and  Amdts.   1895,  p.  40. 


366 


Tits.    XIX,  XX.]      CO-OPERATIVK   ASSOCIATIONS.  §  653a 


[A   new   title   added   by  Act  March    21,    1905,  Stats,   and  Amdts. 
1905,   p.    594.] 

TITLE   XIX. 

CO-OPERATIVE    BUSINESS    CORPORATIONS. 
§  653a.     Purposes  for  which  may  be  formed. 

§  653a.     PURPOSES  FOR  WHICH  MAY  BE  FORMED. 

Co-operative  business  corporations  ma}^  be  formed  for  do- 
ing any  lawful  business,  and  dividing  a  portion  of  their 
profits  among  persons  other  than  their  stockholders.  Each 
of  such  corporations  maj',  m  its  by-laws,  in  addition  to  the 
matters  specified  in  section  three  hundred  and  three,  pro- 
vide the  amount  of  profits  which  must  be  divided  among 
persons  other  than  its  stockholders,  and  the  manner  in  which 
and  the  persons  among  whom  such  division  may  be  made. 

History:      Enacted    March    21,     1905,    Stats,    and    Amdts.     1905, 
p.  594. 


[A  new   title  added  by   Act  March   21,   1905,   Stats,   and  Amdts. 
1905,   pp.    595-599.] 

TITLE   XX. 

CO-OPERATIVE  BUSINESS  ASSOCIATIONS. 

§  653b.      Formation  and  purposes  of. 

§  653c.     Rights,   interests,   and   liabilities   of  members. 

§  653d.  •   The  articles   of  association. 

§  653e.     The  by-laws. 

§  653f.       Execution    against    the   association    or    its    members. 

§  653g.     Purpose    of    the    association,    how   may   be   altered. 

§  653h.     Powers   of   the   association. 

§  653ha.  Method   of  calling  meetings  of  unincorporated  societies, 

etc. 
§  653i.      Consolidation   of   associations. 
§    653j.       Dissolution    and    winding    up   of    association. 

367 


§§653b,653c  civil  code.  [Div.I,Pt.IV. 

§  653k.  Quo  warranto  to  inquire  into  the  right  of  an  associa- 
tion   to    do    business. 

§  6531.  What  corporations  or  associations  are  not  affected  by 
this  title. 

§653b.  FORMATION  AND  PURPOSE  OF.  Five  or 
more  persons  may  form  a  co-operative  association  for  the 
transaction  of  any  lawful  business,  whether  for  profit  or 
not,  or  for  the  promotion  of  any  educational,  industrial, 
benevolent,  social,  or  political  purpose.  Such  association 
must  not  have  any  capital  stock,  but  must  issue  membership 
certificates  to  each  member. 

[Certificate  of  membership — Transfer.]  Such  certificate 
cannot  be  assigned,  so  that  the  assignee  can,  by  its  transfer, 
become  a  member  of  the  association,  but,  by  a  resolution  of 
its  board  of  directors,  such  certificate  may  be  transferred, 
and  the  transferee  made  a  member  in  lieu  of  the  last  former 
holder. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    595. 

§653c.  RIGHTS,  INTERESTS,  AND  LIABILITY  OF 
MEMBERS.  In  such  association  the  rights  and  interests  of 
all  members  are  equal,  and  no  member  can  have  or  acquire 
a  greater  interest  therein  than  any  other  member  has.  At 
every  election  held  pursuant  to  the  by-laws  each  member 
must  be  entitled  to  cast  one  vote  and  no  more. 

[Who  are  eligible  to  membership.]  All  persons  above  the 
age  of  eighteen  years,  regardless  of  sex,  are  eligible  to  mem- 
bership, if  otherwise  qualified  and  elected  as  the  by-laws 
may  provide.  The  by-laws  must  provide  for  the  amount  of 
the  indebtedness  which  such  association  may  incur. 

[Liability  of  members.]  And  no  member  shall  be  re- 
sponsible individually,  or  personally  liable,  for  any  of  the 
debts  or  liabilities  of  the  association  in  excess  of  his  pro- 
portion of  such  indebtedness;  but  in  case  of  the  failure  and 
insolvency  of  such  association,  may  be  required  to  pay  any 
unpaid  dues  or  instalments  which  have,  before  such  insolv- 

368 


Tit.XX.]  ARTICLES— BY-LAWS.  §§  653d,  653e 

ency,  become  due  from  such  member  to  the  association,  pur- 
suant to  its  by-laws. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    595. 

§653d.  THE  ARTICLES  OF  ASSOCIATION.  Every 
association  formed  under  this  title  must  prepare  articles  of 
association,  in  writing,  stating:  The  name  of  the  association, 
the  purpose  for  which  it  is  formed,  the  place  where  its 
principal  business  is  to  be  transacted,  the  term  for  which 
it  is  to  exist,  not  to  exceed  fifty  years,  the  number  of  the 
directors  thereof,  and  the  names  and  residences  of  those 
selected  for  the  first  year,  the  amount  which  each  member 
is  to  pay  upon  admission  as  membership  fee,  and  that  each 
member  signing  the  articles  has  actually  paid  in  such  sum, 
and  that  the  interest  and  right  of  each  member  therein  is  to 
be  equal. 

[Subscription  and  acknowledgment;  filing.]  Such  articles 
of  association  must  be  subscribed  bj'  the  original  associates 
or  members,  and  acknowledged  by  each  before  some  per- 
son competent  to  take  an  acknowledgment  of  a  deed  in 
this  state.  Such  articles  so  subscribed  and  acknowledged 
must  be  filed  in  the  office  of  the  clerk  of  the  county  wherein 
the  principal  business  of  the  association  is  to  be  transpcted,  * 
and  a  copy  thereof  certified  by  such  clerk,  with  the  secre- 
tary of  state,  who  must  thereupon  issue  his  certificate  in 
the  form,  and  having  the  effect  prescribed  in  section  two 
hundred  and  ninety-six. 

History:  Enacted  March  21,  1905.  Stats,  and  Amdts.  1905, 
pp.    595-596. 

§  653e.  THE  BY-LAWS.  Every  association  formed  un- 
der this  title  must,  within  forty  days  after  it  so  becomes 
an  association,  adopt  a  code  of  by-laws  for  the  government 
and  management  of  the  association,  not  inconsistent  with 
this  title.  A  majority  of  all  the  associates  is  necessary  to 
the  adoption  of  such  by-laws,  and  the  same  must  be  written 

369 


§653e  CIVIL  CODE.  [Div.I.Pt.lV. 

in  a  book,  and  subscribed  by  the  members  adopting  the 
same,  and  the  same  cannot  be  amended  or  modified  except 
'by  the  vote  of  a  majority  of  all  the  members,  after  notice 
of  the  proposed  amendment,  given  as  the  by-laws  may  pro- 
vide. 

[What  by-laws  may  provide — Number,  terms,  and  com- 
pensation of  officers.]  Such  association  may,  by  its  by- 
laws, provide  for  the  time,  place,  and  manner  of  calling  and 
conducting  its  meetings;  the  number  of  directors,  the  time 
of  their  election,  their  term  of  ofifice,  the  mode  and  manner 
of  their  removal,  the  mode  and  manner  of  filling  vacancies 
in  the  board  caused  by  death,  resignation,  removal,  or  other- 
wise, and  the  power  and  authority  of  such  directors,  and 
how  many  thereof  are  necessary  to  the  exercise  of  the 
powers  of  such  directors,  which  must  be  at  least  a  majority; 
the  compensation  of  any  of  the  directors!  or  of  any  officer; 
the  number  of  the  officers,  if  any,  other  than  the  directors, 
and  their  term  of  office;  the  mode  of  removal,  and  the 
method  of  filling  a  vacancy:  the  mode  and  manner  of  con- 
ducting business;  the  mode  and  manner  of  conducting 
elections,  and  may  provide  for  voting  by  ballots  forwarded 
by  mail  or  otherwise; 

[Manner  of  conducting  elections;  qualifications  and  suc- 
cession; expulsion.]  Provided  the  method  secures  the 
secrecy  of  the  ballot;  the  mode  and  manner  of  succession 
of  membership,  and  the  qualifications  for  membership,  and 
on  what  conditions,  and  when  membership  must  cease,  and 
the  mode  and  manner  of  expulsion  of  a  member,  subject  to 
the  right  of  an  expelled  member  to  have  the  board  of 
directors  appraise  his  interest  in  the  association  in  either 
money,  property,  or  labor,  as  the  directors  may  deem  best, 
and  to  have  the  money,  property,  or  labor  so  awarded  him 
paid,  or  delivered,  or  performed  within  forty  days  after 
expulsion; 

[Amount  of  membership  fees,  dues,  etc.]  The  amount  of 
membership  fee,  and  the  d\ies,  instalments,  or  labor  which 
each   member  must  be  required   to  pay   or  perform,   if  any, 

370 


Tit. XX. 1  WITHDRAWALS — PROFITS.  §  653f 

and  the  manner  of  collection  or  enforcement,  and  for  for- 
feiting or  selling  of  membership  interest  for  non-payment 
or  non-performance; 

[Withdrawal;  ascertainment  of  interest.]  The  method, 
time,  and  manner  of  permitting  the  withdrawal  of  a  member. 
if  at  all,  and,  how  his  interest  must  be  ascertained,  either  in 
money  or  property,  and  within  what  time  the  same  must 
be  paid  or  delivered  to  such  member;  the  mode  and  man- 
ner of  ascertaining  the  interest  of  a  member  at  his  death, 
if  his  legal  representatives  or  none  of  them  desire  to  suc- 
ceed to  the  membership,  and  whether  the  same  must  be 
paid  to  his  legal  representatives  in  mone}',  or  property,  or 
labor,  and  within  what  time  the  same  must  be  paid,  or  de- 
livered, or  performed;  such  other  things  as  may  be  proper 
to  carry  out  the  purpose  for  which  the  association  was 
formed. 

[Division  of  profits.]  The  by-laws  must  provide  for  the 
time  and  manner  in  which  profits  must  be  divided  among  the 
members,  and  what  proportion  of  the  profits,  if  an}-,  must 
be  added  to  the  common  property  or  funds  of  the  associa- 
tion. But  the  by-laws  may  provide  that  the  directors  may 
suspend  or  pass  the  payment  of  any  such  profit,  or  instalment 
of  earnings,  at  their  discretion. 

[Recording  and  filing  by-laws.]  The  by-laws  anrt  all 
amendments  must  be  recorded  in  a  book  and  kept  in  the 
ofifice  of  the  association,  and  a  copy,  certified  by  the  di- 
rectors, must  be  filed  in  the  office  of  the  county  clerk  where 
the  principal  business  is  transacted. 

Hi-story:  Enacted  March  21,  190.o,  Stats,  and  Amdts.  1905, 
pp.    596-597. 

§653f.  EXECUTION  AGAINST  THE  ASSOCIATION 
OR  ITS  MEMBERS.  The  property  of  such  association  is 
sul;)ject  to  attachment  and  execution  for  its  lawful  debts. 
The  interest  of  a  meml)er  in  such  association,  if  sold  upon 
execution,    or    any    judicial    or    governmental     order     what- 

371 


§§653g,  653h  civil  code.  [Div.I,Pt.IV. 

ever,  cannot  authorize  the  purchaser  to  have  any  right,  ex- 
cept to  succeed,  as  a  member  in  the  association,  with  the 
consent  of  the  directors,  to  the  rights  of  the  member  whose 
interest  is  thus  sold.  If  the  directors  choose  to  pay  or 
settle  the  matter  after  such  sale,  they  may  either  cancel 
the  membership,  and  add  the  interest  thus  sold  to  the 
assets  or  common  property  of  the  association,  or  reissue  the 
share  or  right  to  a  new  member  upon  proper  payment  there- 
for,  as   the   directors   may   determine. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    597. 

§653g.  PURPOSE  OF  THE  ASSOCIATION,  HOW 
MAY  BE  ALTERED.  The  purpose  of  the  business  may 
be  altered,  changed,  modified,  enlarged,  or  diminished  by  a 
vote  of  two-thirds  of  all  the  members,  at  a  special  election 
to  be  called  for  such  purpose,  of  which  notice  must  be 
given  the  same  as  the  by-laws  provide  for  the  election  of 
directors. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.  597. 

§653h.  POWERS  OF  THE  ASSOCIATION.  Every  as- 
sociation formed  under  this  title  has  power  of  succession 
by  its  associate  name  for  fiftj'  years;  in  such  name  to 
sue  and  be  sued  in  any  court;  to  make  and  use  a  common 
seal,  and  alter  the  same  at  pleasure;  to  receive  by  gift,  devise, 
or  purchase,  hold,  and  convey  real  and  personal  property, 
as  the  purposes  of  the  association  may  require;  to  appoint 
such  subordinate  agents  or  ofificers  as  the  business  may  re- 
quire; to  admit  associates  or  members,  and  to  sell  or  for- 
feit their  interest  in  the  association  for  default  of  instal- 
ments, or  dues,  or  work,  or  labor  required,  as  provided  by 
the  by-laws;  to  enter  into  any  and  all  lawful  contracts  or 
obligations  essential  to  the  transaction  of  its  affairs,  for  the 

372 


Tit.XX.]  CALLING  MEETINGS.  §  653ha 

purpose  for  which  it  was  formed,  and  to  borrow  money, 
and  issue  all  such  notes,  bills,  or  evidences  of  indebtedness 
or  mortgage  as  its  by-laws  may  provide  for;  to  trade,  bar- 
ter, buy,  sell,  exchange,  and  to  do  all  other  things  proper 
to  be  done  for  the  purpose  of  carrying  into  effect  the  objects 
for  which  the  association  is  formed. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
pp.   597-59S. 

§653ha.  METHOD  OF  CALLING  MEETINGS  OF  UN- 
INCORPORATED SOCIETIES,  ETC.  In  all  cases  where 
neither  the  constitution  nor  by-laws  of  an  unincorporated 
society,  organization  or  association  fixes  the  manner  of 
calling  meetings  of  such  unincorporated  society,  organiza- 
tion or  association,  or  where  the  ofificer  or  officers,  or  per- 
son or  persons  whose  duty  it  is  under  the  said  constitu- 
tion or  by-laws  to  call  a  meeting  thereof  fails,  neglects 
and  refuses  to  call  such  meeting,  a  meeting  thereof  may 
be  called  by  twelve  members  thereof  in  the  manner  fol- 
lowing: By  signing  a  call  for  such  meeting,  in  which  call 
the  time  and  place  of  such  meeting  shall  be  stated,  and 
giving  two  weeks'  notice  of  such  meeting  by  publication 
of  such  call  in  some  newspaper  of  general  circulation  pub- 
lished in  the  county  or  city  and  county  where  the  last  pre- 
ceding meeting  of  such  society,  organization  or  association 
was  held,  or  if  no  such  newspaper  is  published  in  such  county 
or  city  and  county,  then  in  a  newspaper  of  general  circulation 
published  in  an  adjoining  county;  provided,  however,  that 
in  the  event  the  by-laws  of  any  such  unincorporated  society, 
organization,  or  association  specify  a  particular  method  or 
manner  of  giving  notice  of  a  meeting,  such  provision  shall 
be  followed,  in  addition  to  the  method  hereinabove  pro- 
vided, in  a  notice  of  any  meeting  given  by  said  twelve 
members. 

Hi.story:  Enactment  approved  May  26,  1915,  Stats,  and  Amdts. 
1915,  p.   S5T.      In   effect   August    S,    1915. 

2,72> 


§§653i,  653j  civil  code.  [Div.I.Pt.IV. 

§653i.     CONSOLIDATION  OF  ASSOCIATIONS.     Two 

or  more  associations  formed  and  .existing  under  this  title, 
or  under  any  pre-existing  law  authorizing  their  formation 
for  the  same  purposes,  may  be  consolidated,  upon  sucn 
terms,  and  for  such  purposes,  and  by  such  name,  as  may 
be  agreed  upon,  in  writing,  signed  by  two-thirds  of  the 
members  of  each  such  association. 

[What  agreement  must  state;  filing;  fee.]  Such  agree- 
ment must  also  state  all  the  matters  necessary  to  articles 
of  association,  and  must  be  acknowledged  by  the  signers  be- 
fore an  officer  competent  to  take  an  acknowledgment  of 
deeds  in  this  state,  and  be  filed  in  the  office  of  the  count}' 
clerk  of  the  county  wherein  the  principal  business  of  the 
association  is  to  be  transacted,  and  a  certified  copy  thereof 
in  the  office  of  the  secretary  of  state,  and  pay  the  same 
fees  for  filing  and  recording  as  required  by  this  code  for 
the  filing  and  recording  of  the  certified  copy  of  the  original 
articles  of  association;  and  from  and  after  the  filing  of  such 
certified  copy,  the  former  associations  comprising  the  com- 
ponent parts  cease  to  exist,  and  the  consolidated  association 
succeeds  to  all  the  rights,  duties,  and  powers  of  the  com- 
ponent associations,  and  is  possessed  of  all  the  rights, 
duties,  and  powers  prescribed  in  the  agreement  of  consolidat- 
ed association  not  inconsistent  with  this  title,  and  is  subject 
to  all  the  liabilities  and  obligations  of  the  former  component 
associations,  and  succeeds  to  all  the  property  and  interests 
thereof,  and  may  make  by-laws  and  do  all  things  permitted 
by  this  title. 

Hi.story:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    598. 

§653j.  DISSOLUTION  AND  WINDING  UP  OF  AS- 
SOCIATION. Any  association  formed  or  consolidated  un- 
der this  title  may  be  dissolved  and  its  affairs  wound  up 
voluntaril}'  by  the  written  request  of  two-thirds  of  the 
members.     Such  request  must  be  addressed  to  the  directors, 

374 


Tit. XX.]  DISSOLUTION— QUO  WARRANTO.  §  653k 

and  must  specify  reasons  why  the  winding  up  of  the  affairs 
of  the  association  is  deemed  advisable,  and  must  name  three 
persons  who  are  members  to  act  in  liquidation  and  in 
winding  up  the  affairs  of  the  association,  a  majority  of  whom 
must  thereupon  have  full  power  to  do  all  things  necessary 
to  liquidation;  and  upon  the  filing  of  such  request  with 
the  directors,  and  a  copy  thereof  in  the  ofifice  of  the  county 
clerk  of  the  county  where  the  principal  business  is  trans- 
acted, all  power  of  the  directors  ceases  and  the  persons  ap- 
pointed must  proceed  to  wind  up  the  association,  and  realize 
upon  its  assets,  and  pay  its  debts,  and  divide  the  residue  of 
its  money  among  the  members,  share  and  share  alike,  within 
a  time  to  be  named  in  said  written  request,  or  such  further 
time  as  may  be  granted  them  by  two  thirds  of  the  members, 
in  w^riting,  filed  in  the  ofiice  of  said  county  clerk;  and  upon 
the  completion  of  such  liquidation  the  said  association  must 
be  deemed  dissolved.  No  receiver  of  any  such  association, 
or  of  any  property  thereof,  or  of  any  right  therein,  can 
be  appointed  by  any  court,  upon  the  application  of  any  mem- 
ber, save  after  judgment  of  dissolution  for  usurping  fran- 
chises at  the  suit  of  the  state  of  California  by  its  attorney- 
general. 

History:      Enacted    March    21,    1905,    Stats,    and    Amdts.    1905, 
p.    598. 


§653k.     QUO  WARRANTO  TO  INQUIRE  INTO  THE 
RIGHT  OF  AN  ASSOCIATION  TO  DO  BUSINESS.    The 

right  of  any  association  claiming  to  be  organized  under  this 
title  to  do  business  may  be  inquired  into  by  quo  warranto, 
at  the  suit  of  the  attorney-general  of  this  state,  but  not  other- 
wise. 

History:      Enacted    March    21,    1905,    Stats,    and    Amdts.    1905, 
p.    599. 

375 


§6531  CIVIL  CODE.  [Div.I.Pt.IV. 

§653  1.  V/HAT  CORPORATIONS  OR  ASSOCIATIONS 
ARE  NOT  AFFECTED  BY  THIS  TITLE.  This  title  is 
not  applicable  to  railroads,  telegraph,  telephone,  banking,  in- 
surance, building  and  loan,  or  any  other  corporation,  unless 
the  special  provisions  of  this  code,  applicable  thereto,  are 
complied  with. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    599. 


376 


Tit. XXL]  AGRICULTURAL,    ETC.,  ASSOCS.     §§  653m,  653n 


[A  new  title  to  be  XXI  of  part  IV  of  division  First  added  by 
Act  February  12,  1909,  (Stats,  and  Amdts.  1909,  p.  16),  to  read 
as   follows:] 

TITLE  XXL 

NON-PROFIT      CO-OPERATIVE      AGRICULTURAL,      VITICUL- 
TURAL,  AND  HORTICULTURAL  ASSOCIATIONS. 

§  653ni.  Formation   and  purposes  of. 

§  653n.  Membership. 

§  653o.  Articles   of   incorporation. 

§  653p.  By-laws. 

§  653q.  Powers  of   association. 

§  653r.  Amendment   to   articles   of   incorporation. 

§  653s.  Quo  warranto. 

§653m.  FORMATION  AND  PURPOSES  OF.  Three  or 
more  persons  engaged  in  the  production,  preserving,  drying, 
packing,  shipping,  or  marketing  of  agricultural,  viti- 
cultural  or  horticultural  products,  or  all  of  them,  may  form 
a  non-profit  co-operative  association  under  the  provisions  of 
this  title,  to  carrj^  on  said  business,  and  such  association 
shall  have,  and  may  exercise,  the  powders  authorized  by  this 
title,  and  the  powers  necessarily  incidental  thereto,  and  all 
other  powers  granted  to  private  corporations  by  the  laws 
of  this  state,  except  such  powers  as  are  inconsistent  with 
those   granted  by   this   title. 

History:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.    16. 

§653n.  MEMBERSHIP.  Such  association  shall  not 
have  a  capital  stock,  and  its  business  shall  not  be  carried 
on  for  profit.  Any  person  or  any  number  of  persons,  in 
addition  to  the  original  incorporators,  may  become  mem- 
bers of  such  association,  upon  such  terms  and  conditions  as 
to  membership,  and  subject  to  such  rules  and  regulations  as 

377 


§653o  civiT.  CODE.  [Div.I.Pt.TV 

to  their,  and  each  of  their,  contract  and  other  rights  and 
liabilities  between  it  and  the  member,  as  the  said  association 
shall  provide  in  its  by-laws. 

[Certificate  of  membership.  Right  of  succession.]  The 
association  shall  issue  a  certificate  of  membership  to  each 
member,  but  the  said  membership,  or  the  said  certificate 
thereof,  shall  not  be  assigned  by  a  member  to  any  other 
person,  nor  shall  the  assigns  thereof  be  entitled  to  member- 
ship in  the  association,  or  to  any  property  rights  or  in- 
terests therein.  Nor  shall  a  purchaser  at  execution  sale, 
or  any  other  person  who  may  succeed,  by  operation  of  law 
or  otherwise  to  the  property  interests  of  a  member,  be 
entitled  to  membership,  or  become  a  member  of  the  associa- 
tion by  virtue  of  such  transfer.  The  board  of  directors  may, 
however,  by  motion  duly  adopted  by  it,  consent  to  such  as- 
signment or  transfer  and  to  the  acceptance  of  the  assignee 
or  transferee  as  a  member  of  the  association,  but  the  as- 
sociation shall  have  the  right,  by  Its  by-laws,  to  provide 
for  or  against  the  transfer  of  membership  and  for  or  against 
the  assignment  of  membership  certificates,  and  also  the 
terms  and  conditions  upon  which  any  such  transfer  or  as- 
signment  shall   be   allowed. 

Hi-story:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.    17. 

§653o.  ARTICLES  OF  INCORPORATION.  Each  as- 
sociation formed  under  this  title  must  prepare  and  file  articles 
of  incorporation  setting  forth: 

1.  The  name    of    the    association. 

2.  The  purpose  for  which   it  is  formed. 

3.  The  place  where  its  principal  business  will  be  trans- 
acted. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fifty 
years. 

5.  The  number  of  directors  thereof,  which  must  not  be  less 
than  three  and  which  may  be  any  number  in  excess  thereof, 

378 


Tit. XX I.]  ARTICLES— BY-LAWS.  §  653p 

and  the  names  and  residences  of  those  selected  for  the  first 
year  and  until  their  successors  shall  have  been  elected,  and 
shall  have  accepted  ofifice. 

6.  Whether  the  voting  power  and  the  property  rights  and 
interest  of  each  member  shall  be  equal  or  unequal,  and  if 
unequal  the  articles  shall  set  forth  a  general  rule  or  rules 
applicable  to  all  members  by  which  the  voting  power  and 
the  property  rights  and  interests,  respectivel}',  of  each  mem- 
ber may  and  shall  be  determined  and  fixed,  but  the  associa- 
tion shall  have  power  to  admit  new  members  who  shall 
be  entitled  to  vote  and  to  share  in  the  property  of  the  as- 
sociation with  the  old  members,  in  accordance  with  such  gen- 
eral rule.  This  provision  of  the  articles  of.  incorporation 
shall  not  be  altered,  amended,  or  repealed  except  by  the 
unanimous  written  consent  or  the  vote  of  all  of  the  mem- 
bers. 

7.  Said  articles  must  be  subscribed  by  the  original  mem- 
bers and  acknowledged  by  one  of  them  before  an  officer 
authorized  by  the  law  of  this  state,  to  take  and  certity 
acknowledgments  of  deeds  of  conveyance,  and  shall  be  filed 
in  accordance  with  the  provisions  of  section  two  hundred 
and  ninety-six  of  this  code,  and  when  so  filed  the  said 
articles  of  incorporation  or  certified  copies  thereof  shall  be 
received  in  all  the  courts  of  this  state,  and  other  places,  as 
prima  facie  evidence  of  the  facts  contained  therein. 

History:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.    17. 

§  653p.  BY-LAWS.  Each  association  incorporated  under 
this  title  must,  within  thirty  days  after  its  incorporaj:ion, 
adopt  a  code  of  by-laws  for  its  government  and  management 
not  inconsistent  with  the  provisions  of  this  title.  A 
majority  vote  of  the  members  or  the  written  assent  of  mem- 
bers representing  a  majoritj-  of  the  votes,  is  necessary  to 
adopt  such  by-laws.  The  provisions  of  sections  three  hun- 
dred   and    three    and   three    hundred   and    four   of   this    code, 

379 


§653p  CIVIL    CODE.  [Div.I.Pt.IV. 

which  are  not  inconsistent  with  the  provisions  of  this  title, 
shall  apply  to  the  by-laws  of  the  corporations  provided  for 
in  this  title.  Each  association  may  also,  by  its  by-laws 
adopted   as    aforesaid,    provide    for   the   following   matters: 

1.  The  manner  of  removal  of  any  one  or  more  of  its 
directors  and  for  filling  any  and  all  vacancies  in  the  board 
of  directors. 

2.  The  number  of  directors  and  the  number  of  members 
or  votes  thereof  constituting  a  quorum. 

3.  The  conditions  upon  which  and  the  time  when  member- 
ship of  any  member  in  the  association  shall  cease;  the  mode, 
manner  and  effect  of  expulsion  of  a  member,  subject  to  the 
right  of  the  expelled  member  to  have  the  board  of  directors 
equitably  appraise  his  property  interests  in  the  association 
and  to  fix  the  amount  thereof  in  money,  and  to  have  the 
money  paid  to  him  within  sixty  days  after  such  expulsion. 

4.  The  amount  of  membership  fee,  if  any,  and  the  amount 
which  each  member  shall  be  required  to  pay  annually,  or 
from  time  to  time,  if  at  all,  to  carry  on  the  business  of  the 
association,  and  also  the  compensation,  if  any,  to  be  paid 
by  each  member  for  any  services  rendered  by  the  associa- 
tion to  him,  and  the  time  of  payment  and  the  manner  of 
collecting  the  same,  and  for  forfeiture  of  the  interest  of  the 
member  in  the  association  for  non-payment  of  the  same. 

5.  The  number  and  qualifications  of  members  of  tlie  as- 
sociation and  the  conditions  precedent  to  membership  and 
the  method,  time  and  manner  of  permitting  members  to 
withdraw,  and  providing  for  the  assignment  and  transfer  of 
the  interest  of  members,  and  the  manner  of  determining  the 
value  of  such  interest  and  providing  for  the  purchase  of 
such  interest  by  the  association  upon  the  death,  withdrawal 
or  expulsion  of  a  member  or  upon  the  forfeiture  of  his  mem- 
bership, at  the  option   of  the  association. 

6.  Permitting  members  to  vote  by  their  proxies,  and  de- 
termining  the    conditions,    manner,    form   and    effect   thereof. 

History:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.   IS. 

380 


Tit.XX.]  POWERS  OF  ASSOCIATION.  §  653q 

§653q.  POWERS  OF  ASSOCIATION.  Each  associa- 
tion incorporated  under  this  title  shall  have  the  powers 
granted  by  the  provisions  of  this  code  and  other  laws  of 
California  relating  to  private  corporations,  and  shall  also 
have  the  following  powers: 

1.  To  appoint  such  agents  and  officers  as  its  business  may 
require,  and  such  appointed  agents  may  be  either  persons 
or  corporations;  to  admit  persons  to  membership  in  the 
association,  and  to  expel  any  member  pursuant  to  the  pro- 
visions of  its  by-laws;  to  forfeit  the  membership  of  any 
member  for  violation  of  any  agreement  between  him  and  the 
association,  or  for  his  violation  of  its  by-laws. 

2.  To  purchase  or  otherwise  acquire,  hold,  own,  sell  and 
otherwise  dispose  of  any  and  every  kind  or  kinds  of  real 
and  personal  property  necessary  to  carry  on  its  business, 
and  to  acquire  by  purchase  or  otherwise  the  interest  of  any 
member  in  the  property  of  the  association. 

3.  Upon  the  written  assent  or  by  a  vote  of  members  rep- 
resenting two-thirds  of  the  total  votes  of  all  members  to 
co-operate  with  any  other  co-operative  corporation  or  cor- 
porations for  the  co-operative  and  more  economical  carrying 
on  of  their  respective  business,  by  consolidation  as  pro- 
vided in  section  six  hundred  and  fifty-three  i  of  this  code, 
whereupon  the  effect  of  such  consolidation  shall  be  the  same 
as  declared  in  said  section;  or  upon  resolution,  adopted  by 
its  board  of  directors,  to  enter  into  all  necessary  and  proper 
contracts  and  agreements,  and  to  make  all  necessary  and 
proper  stipulations  and  arrangements  with  any  other  co- 
operative corporation  or  corporations  for  the  co-operative 
and  more  economical  carrying  on  of  its  business,  or  any 
part  or  parts  thereof;  or  any  two  or  more  co-operative  cor- 
porations organized  under  this  title,  upon  resolutions,  adopted 
l>y  their  respective  board  of  directors,  may,  for  the  purpose 
of  more  economically  carrying  on  their  respective  businesses, 
by  agreement  between  them,  unite  in  employing  and  using, 
or  several  associations  may  separately  employ  and  use,  .the 

381 


§653r  CIVIL    CODE.  [Div.T.Pt.I V. 

same  methods,  means  and  agencies,  for  carrj-ing  on  and  con- 
ducting  their   respective  businesses. 

4.  Any  association  formed  or  consolidated  under  this  title 
may  be  dissolved  and  its  affairs  wound  up  voluntarily  by  the 
written  request  of  members  representing  two-thirds  of  the 
total  votes,  in  the  manner  and  with  the  effect  provided  in 
section  six  hundred  and  fifty-three  j  of  this  code,  except 
that  the  moneys  remaining  after  liquidation  shall  be  divided 
among  the  members  in  proportion  to  their  property  interests 
therein. 

History:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.   19. 

§653r.  AMENDMENT  TO  ARTICLES  OF  INCOR- 
PORATION. Any  corporation,  whether  stock  or  member- 
ship, heretofore  incorporated  under  the  laws  of  this  state 
for  the  purpose  of  engaging  in  and  carrying  on  the  business 
specified  in  section  six  hundred  and  fifty-three  m  of  this 
title,  the  stockholders  or  members  of  which  would  be  en- 
titled to  incorporate  under  the  provisions  of  this  title,  may, 
by  the  unanimous  written  assent  or  vote  of  all  the  stock- 
holders or  members,  amend  its  articles  of  incorpoi^ation  to 
conform  to  the  provisions  of  this  title  in  the  manner  and 
with  the  effect  provided  in  section  three  hundred  and  sixty- 
two  of  the  Civil  Code,  and  from  the  time  of  filing  the 
amended  articles,  such  corporation  shall  have  the  same 
powers  as  if  it  had  originally  incorporated  under  the  pro- 
visions of  this  title;  provided,  however,  that  the  debts, 
obligations,  and  other  liabilities  against  such  corporation  or 
against  the  members  or  the  stockholders  thereof,  existing 
at  the  time  of  such  amendment,  shall  not  be  discharged 
or  their  collection  or  enforcement  otherwise  impaired;  and 
provided  further  that  the  respective  property  interests  of 
the  several  stockholders  by  virtue  of  their  ownership  of 
shares  of  stock  therein,  or  the  several  members  by  virtue 
of   their   membership   therein,   and   also   the   voting  power   of 

382 


Tit.XXI.]  QUO   WARRANTO.  §  653s 

each  of  them,  shall  be  determined  and  fixed  by  the  amended 
articles  of  incorporation  in  accordance  with  the  provisions 
of  subdivision  six  of  section  six  hundred  fifty-three  o,  but 
which  rights  shall  be  subject  to  the  right  of  the  association 
to  admit  new  members. 

History:  Enacted  February  12,  1909,  Stats,  and  Amuts.  1909, 
p.   19. 

§  653s.  QUO  WARRANTO.  The  right  of  an  association 
claiming  to  be  organized  and  incorporated  and  carrying  on 
its  business  under  this  title,  to  do  and  to  continue  its  busi- 
ness, may  be  inquired  into  by  quo  warranto  at  the  suit  of 
the  attorney-general,  but  not  otherwise. 

History:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.    20. 


383 


§§653t,  653u  CIVIL  CODE.  [Div.I,Pt.IV. 


[A  new  title  to  be  known  as  title  XXII  of  part  IV  of  division 
first  is  hereby  added  (Act  April  13,  1909,  Stats,  and  Amdts. 
1909,  p.   854),  to  read  as  follows:] 

TITLE   XXII. 

NON-PROFIT    CO-OPERATIVE    CORPORATIONS. 

§  653t.       Formation    and   purpose    of. 

§  653u.      Membership. 

§  6^v.      Articles   of   incorporation. 

§  653w.    By-laws. 

§  653x.     Powers    of   corporation. 

§  653y.     Amendment  of  articles  of  incorporation. 

§  653z.      Quo  warranto. 

§'653za.   Particular   corporations. 

§  653zb.   Voting. 

§653t.  FORMATION  AND  PURPOSE  OF.  Non-profit 
co-operative  corporations  may  be  formed  by  the  voluntary 
association  of  any  three  or  more  persons  in  the  manner 
prescribed  in  this  title.  A  majority  of  such  persons  must 
be  residents  of  this  state,  and  such  corporation  shall  have 
and  may  exercise  the  powers  authorized  by  this  title,  and 
the  powers  necessarily  incident  thereto,  and  also  all  other 
powers  granted  to  private  corporations  by  the  laws  of  this 
state,  excepting  such  powers  as  are  inconsistent  with  those 
granted  by  this  title. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909, 
p.   854. 

§653u.  MEMBERSHIP.  Such  corporation  shall  not  have 
a  capital  stock,  and  its  business  shall  not  be  carried  on  for 
profit.  Any  person  or  any  number  of  persons  including  and 
in  addition  to  the  original  incorporators,  may  become  mem- 
bers of  such  corporation  upon  such  terms  and  conditions  as 
to  membership,  and  subject  to  such  rules  and  regulations 
as  to  their,  and  each  of  their,  contract  and  other  rights  and 

384 


Tit.XXII.]  MEMBERSHIP— ARTICLES.  §  653v 

liabilities  between  it  and  the  member,  as  the  said  corpora- 
tion shall  prescribe  in  its  by-laws.  The  corporation  shall 
issue  a  certilicate  of  membership  to  each  member,  but  the 
said  membership,  or  the  said  certificate  thereof,  shall  not, 
except  as  herein  provided,  be  assigned  by  any  member  to 
any  other  person,  nor  shall  the  assigns  thereof  be  entitled 
to  membership  in  the  corporation,  or  to  any  property 
rights  or  interest  therein,  nor  shall  a  purchaser  at  execution 
sale,  or  any  other  person  who  may  succeed,  by  operation 
of  law  or  otherwise,  to  the  property  interests  of  a  member, 
be  entitled  to  membership,  or  become  a  member  of  the 
corporation  by  virtue  of  such  transfer.  The  board  of  di- 
rectors may,  however,  by  motion  duly  adopted  by  it,  con- 
sent to  such  assignment  or  transfer,  and  to  the  acceptance 
of  the  assignee  or  transferee  as  a  member  of  the  corporation. 
The  corporation  shall  also  have  the  right,  by  its  by-laws. 
to  provide  for  or  against  the  transfer  of  membership  and 
for  or  against  the  assignment  of  membership  certificates,  and 
also  the  terms  and  conditions  upon  which  any  such  transfer 
or  assignment  shall  be  allowed. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909, 
p.    854. 

§653v.  ARTICLES  OF  INCORPORATION.  Each  cor- 
poration formed  under  this  title  must  prepare  and  file  articles 
of  incorporation  in  writing  setting  forth: 

1.  The  name  of  the  corporation. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  where  its  principal  business  will  be  trans- 
acted. 

4.  The  term  for  whicTi  it  is  to  exist,  not  exceeding  fifty 
years. 

5.  The  number  of  directors  thereof,  which  must  not  be 
less  than  three  and  which  may  be  any  number  in  excess 
thereof,  and  the  names  and  residences  of  those  selected  for 
the  first  year  and  until  their  successors  shall  have  been 
elected,  and  shall  have  accepted  office. 

13  385 


§653w  CIVIL   CODE.  [Div.I.Pt.IV. 

6.  Whether  the  voting  power  and  the  property  rights  and 
interest  of  each  member  shall  be  equal  or  unequal,  and  if 
unequal  the  articles  shall  set  forth  a  general  rule  or  rules 
applicable  to  all  members  by  which  the  voting  power  and 
the  property  rights  and  interests,  respectively,  of  each  mem- 
ber may  and  shall  be  determined  and  fixed,  but  the  cor- 
poration shall  have  power  to  admit  new  members  who  shall 
be  entitled  to  vote  and  to  share  in  the  property  of  the 
corporation  with  the  old  members,  in  accordance  with  such 
general  rule. 

7.  Said    articles    of    incorporation    shall    be    subscribed    by 
three  or  more  of  the  original  members,  a  majority  of  whom    "^ 
must  be   residents  of  this  state,   and   acknowledged  by   each 
before  some  officer  authorized  to  take  and  certify  acknowl- 
edgments of  conveyances  of  real  property,  and  shall  be  filed 

in  all  respects  in  accordance  with  the  provisions  of  section 
two  hundred  and  ninety-six  of  this  code,  and  thereupon  the 
secretary  of  state  shall  issue  to  the  corporation,  over  the 
great  seal  of  the  state,  a  certificate  that  a  copy  of  the 
articles  containing  the  required  statement  of  facts  has  been 
filed  in  his  office,  and  thereupon  the  person  signing  the 
articles  and  their  associates  and  successors  shall  be  a  body 
politic  and  corporate  by  the  name  stated  in  the  certificate. 
When  so  filed,  the  said  articles  of  incorporation  or  certified 
copies  thereof  shall  be  received  in  all  the  courts  of  this 
state,  and  other  places,  as  prima  facie  evidence  of  the  facts 
contained  therein. 

Hist<iry:  Enacted  April  13,  1909.  Stats,  and  Amdt.s.  1909, 
p.    855. 

§  653w.  BY-LAWS.  Each  corporation  incorporated  un- 
der this  title  must,  within  one  month  after  filing  articles  of 
mcorporation,  adopt  a  code  of  by-laws  for  its  government 
and  management  not  inconsistent  with  the  provisions  of  this 
title.  A  majority  vote  of  the  members  or  the  written  as- 
sent of  members  representing  a  majority  of  the  votes  is 
necessary  to  adopt  such  by-laws.     The  provisions  of  section 

386 


Tit.XXll.J  BY-I.AWS— PROVIglONS.  §  653\v 

three  hundred  and  three  and  three  hundred  and  four  of  this 
code,  which  are  not  inconsistent  with  the  provisions  of  this 
title,  shall  apply  to  the  by-laws  of  the  corporation  provided 
for  in  this  title.  Each  corporation  organized  hereunder  may 
also,  by  its  by-laws  adopted  as  aforesaid,  provide  for  the 
following   matters: 

1.  The  manner  of  removal  of  any  one  or  more  of  its 
directors  and  of  filling  any  and  all  vacancies  in  the  board 
of  directors. 

2.  The  conditions  upon  which  and  the  time  when  mem- 
bership of  any  member  in  the  corporation  shall  cease;  the 
mode,  manner  and  cftect  of  expulsion  of  a  member,  subject 
to  the  right  of  the  expelled  member  to  have  the  board  of 
directors  equitably  appraise  his  property  interests  in  the 
corporation  and  to  fix  the  amount  thereof  in  money,  and 
to  have  the  money  paid  to  him  within  sixty  daj^s  -after  such 
expulsion. 

3.  The  amount  of  membership  fee,  if  any,  and  the  amount 
which  each  member  shall  be  required  to  pay  annually,  or 
from  time  to  time,  if  at  all,  to  carry  on  the  business  of  the 
corporation,  and  also  the  compensation,  if  any,  to  be  paid 
by  each  member  for  any  services  rendered  bj-  the  corporation 
to  him,  and  the  time  of  payment  and  the  manner  of  col- 
lecting the  same,  and  may  provide  for  forfeiture  of  the 
interest  of  the  member  in  the  corporation  for  non-payment 
of  the  same. 

4.  The  number  and  qualifications  of  members  of  the  cor- 
noration  and  the  conditions  precedent  to  membership  and 
the  method,  time  and  manner  of  permitting  members  to  with- 
draw, and  providing  for  the  assignment»and  transfer  of  the 
interest  of  members,  and  the  manner  of  determining  the 
value  of  such  interest  and  providing  for  the  purchase  of 
such  interest  by  the  corporation  upon  the  deatli,  withdrawal 
or  expulsion  of  a  member  or  ujion  the  forfeiture  of  liis  meni- 
bership,  at   the   option   of  the   corporation. 

History:  Enacted  April  l.S,  1909,  Stats,  and  Amdt.s.  I9U9, 
p.    855. 

387 


§653x  CIVIL  CODE.  [Div.I.Pt.lV. 

§653x.  POWERS  OF  CORPORATION.  Each  corpora- 
tion incorporated  under  this  title  shall  have  the  powers 
granted  by  the  provisions  of  this  code  and  other  laws  of 
California,  relating  to  private  corporations,  which  are  not 
inconsistent  with  those  granted  by  this  title,  and  shall  also 
have  the  following  powers: 

1.  To  appoint  such  agents  and  ofificers  as  its  business  may 
require,  and  such  appointed  agents  may  be  either  persons 
or  corporations;  to  admit  persons  and  corporations  to  mem- 
bership in  the  corporation,  and  to  expel  any  member  pur- 
suant to  the  provisions  of  its  by-laws;  to  forfeit  the  mem- 
bership of  any  member  for  violation  of  any  agreement  be- 
tween him  and  the  corporation  or  for  his  violation  of  its 
by-laws. 

2.  To  purchase,  lease  or  otherwise  acquire,  hold,  own  and 
enjoy,  to  sell,  lease,  mortgage  and  otherwise  encumber  and 
dispose  of  anj'^  and  all  and  every  kind  or  kinds  of  real  and 
personal  property,  also  to  carry  on  any  and  all  operations 
necessary  or  convenient  in  connection  with  the  transaction 
of  any  of  its  business. 

3.  Upon  the  written  assent  of  two-thirds  of  all  the  mem- 
bers or  by  a  vote  of  members  representing  two-thirds  of 
the  total  votes  of  all  members  of  each  of  two  or  more  such 
non-profit  co-operative  corporations  to  co-operate  with  each 
other  for  the  more  economical  carrying  on  of  their  respective 
businesses  by  consolidation  as  provided  in  section  six  hun- 
dred and  fifty-three  i  of  this  code,  such  consolidation  shall 
be  eflfected,  and  thereupon  the  effect  of  such  consolidation 
shall  be  the  same  as  declared  in  said  section.  Any  such  cor- 
poration upon  resolution,  adopted  by  its  board  of  directors, 
shall  have  the  power  to  enter  into  contracts  and  agree- 
ments, and  to  make  stipulations  and  arrangements  with  any 
other  corporation  or  corporations  for  the  co-operative  and 
more  economical  carrying  on  of  its  business,  or  any  part 
or  parts  thereof;  or  any  two  or  more  co-operative  cor- 
porations organized  under  this  title,  upon  resolutions  adopted 

388 


Tit.XXII.]  AMENDMENT  OF  ARTICLES.  §§  653y,  653z 

by  their  respective  boards  of  directors,  may,  for  the  pur- 
pose of  more  economically  carrying  on  their  respective 
businesses,  by  agreement,  unite  in  adopting,  employing  and 
using,  or  several  such  corporations  may  separately  adopt, 
employ  and  use  the  same  methods,  policy,  means,  agents, 
agencies  and  terms  of  marketing  for  carrying  on  and  con- 
ducting their  respective  businesses. 

4.  Any  corporation  formed  or  consolidated  under  this  title 
may  be  dissolved,  and  its  affairs  wound  up  voluntarily  by  the 
w^ritten  consent  of  members  representing  two-thirds  of  the 
total  votes,  in  the  manner  and  with  the  effect  provided  in 
section  six  hundred  and  fifty-three  j  of  this  code,  except 
that  any  property  remaining  after  liquidation  shall  be  divided 
among  the  members  in  proportion  to  their  respective  prop- 
erty interests  therein. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909, 
p.    856. 

§653y.  AMENDMENT  OF  ARTICLES  OF  INCOR- 
PORATION. Any  such  corporation  may  amend  its  articles 
of  incorporation  in  any  manner  not  inconsistent  with  the 
provisions  of  this  title,  in  the  manner  provided  for  by 
section  three  hundred  and  sixty-two  of  the  Civil  Code  of 
this  state. 

HLstory:  Enacted  April  13,  1909,  Stat.s.  and  Amdts.  1909, 
p.    857. 


§  653z.  QUO  WARRANTO.  The  right  of  a  corporation 
claiming  to  be  organized  and  incorporated  and  carrying  on 
its  business  under  this  title,  to  do  and  to  continue  its  busi- 
ness, may  be  inquired  into  by  quo  warranto  proceedings  at 
the  suit  of  the  attorney-general,  but  not  otherwise. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909, 
p.    857. 

389 


§§  653za,  653zb  civil  code.  [Div.I,Pt.lV. 

§653za.  PARTICULAR  CORPORATIONS.  This  title 
is  not  applicable  to  railroads,  telegraph,  telephone,  banking, 
insurance,  building  and  loan,  or  any  other  corporation,  un- 
less the  special  provisions  of  this  code  applicable  thereto 
are  complied  with. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909, 
p.    857. 

§  653zb.  VOTING.  In  the  event  the  by-laws  shall  provide 
for  unequal  voting  pov/er,  or  unequal  property  rights  of  the 
several  members,  or  both,  the  provisions  of  this  title  with 
reference  to  a  majority,  a  two-thirds,  or  other  vote  of  the 
members,  shall  not  apply,  and  in  lieu  thereof,  there  shall 
be  substituted  a  majority,  or  a  two-thirds  of  the  votes  of 
the  interests  represented  by  the  several  members,  or  other- 
wise   as    the    case    may   be. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909, 
p.    857. 


390 


DIVISION  SECOND. 

Part   I.  Property   in   General.  §§654-749. 

II.  Real   or   Immovable  Property,   §§  755-940. 

III.  Personal  or   Movable   Property,  §§946-994. 

IV.  Acquisition  of  Property,  §§  1000-1425. 


PART    I. 
PROPERTY  IN  GENERAL. 
Title  I.     Nature  of  Property,  §§  654-663. 
II.     Ownership,  §§669-742. 
III.     General   Definitions,   §§748-749. 


391 


Div.II.Tit.L]  PROPERTY  IN  WHAT.  §§654-656 


TITLE    I. 

NATURE   OF   PROPERTY. 


§  654.  Property,   what. 

§  655.  In  what  property  may  exist. 

§  656.  Wild   animals. 

§  657.  Real   and   personal. 

§  658.  Real  property. 

S  659.  Land. 

§  660.  Fixtures. 

§  661.  Fixtures  attached  to  mines. 

§  662.  Appurtenances. 

§  663.  Personal  property. 


§654.  PROPERTY,  WHAT.  The  ownership  of  a  thing 
is  the  right  of  one  or  more  persons  to  possess  and  use  it 
to  the  exclusion  of  others.  In  this  code,  the  thing  of  which 
there  may  be  ownership  is  called  property. 

History:      Enacted  March   21,   1872. 

§655.  IN  WHAT  PROPERTY  MAY  EXIST.  There 
may  be  ownership  of  all  inanimate  things  which  are  capable 
of  appropriation  or  of  manual  delivery;  of  all  domestic  ani- 
mals; of  all  obligations;  of  such  products  of  labor  or  skill 
as  the  composition  of  an  author,  the  good-will  of  a  busi- 
ness, trade-marks  and  signs,  and  of  rights  created  or  granted 
by  statute. 

History:     Enacted  March   21,  1872. 

§656.  WILD  ANIMALS.  Animals  wild  by  nature  are 
the  subjects  of  ownership,  while  living,  only  when  on  the 
land  of  the  person  claiming  them,  or  when  tamed,  or  taken 
and  held  in  possession,  or  disabled  and  immediately  pur- 
sued. 

History:     Enacted  March   21,   1872. 

393 


§§657-661  ^  CIVIL    CODE.  [Div.Il,Pt.I. 

§657.     REAL    AND    PERSONAL.     Property    is    either: 

1.  Real  or  immovable;  or, 

2.  Personal  or  movable. 

Historj-:      Enacted  March   21,   1872. 


§658.     REAL  PROPERTY.     Real  or  immovable  property 
consists   of: 

1.  Land; 

2.  That  vi^hich  is  affixed  to  land; 

3.  That  which  is  incidental  or  appurtenant  to  land; 

4.  That  which  is  immovable  by  law. 

History:      Enacted  March   21,  1S72. 


§  659.  LAND.  Land  is  the  solid  material  of  the  earth, 
whatever  may  be  the  ingredients  of  which  it  is  composed, 
whether  soil,  rock,  or  other  substance. 

History:      Enacted  March   21,  1872. 


§660.  FIXTURES.  A  thing  is  deemed  to  be  affixed  to 
land  when  it  is  attached  to  it  by  roots,  as  in  the  case  of 
trees,  vines,  or  shrubs;  or  embedded  in  it.  as  in  the  case  of 
walls;  or  permanently  resting  upon  it,  as  in  the  case  of 
buildings;  or  permanently  attached  to  what  is  thus  per- 
manent, as  by  means  of  cement,  plaster,  nails,  bolts,  or 
screws. 

History:      Enacted  March   21,   1872. 

§65L  FIXTURES  ATTACHED  TO  MINES.  Sluice 
boxes,  flumes,  hose,  pipes,  railway  tracks,  cars,  blacksmith- 
shops,  mills,  and  all  other  machinery  or  tools  used  in  work- 
ing or  developing  a  mine,  are  to  be  deemed  affixed  to  the 
mine. 

History:      Enacted  March   21,   1872. 

394 


Tit.!.]  APPURTENANCES— PERSONALTY.  §§662.663 

§  662.  APPURTENANCES.  A  thing  is  deemed  to  be  in- 
cidental or  appurtenant  to  land  when  it  is  by  right  used  with 
the  land  for  its  benefit,  as  in  the  case  of  a  way,  or  water- 
course, or  of  a  passage  for  light,  air,  or  heat  from  or  across 
the  land  of  another. 

Hi.»itory:      Enacted  March   21,   1872. 

§663.  PERSONAL  PROPERTY.  Every  kind  of  prop- 
erty that  is  not  real  is  personal. 

History:      Enacted  March   21,   1872. 


395 


§§669,670  CIVIL  CODE.  [Div.II.Pt.I. 


TITLE   II. 
OWNERSHIP. 
Chapter  I.     Owners,    §§  669-672. 

II.     Modifications  of  Ownership,  §§678-726. 

III.  Rights  of  Owners,  §§  732-733. 

IV.  Termination   of  Ownership,  §§  739-742. 


CHAPTER   I. 

OWNERS. 

§  669.  Owner. 

§  670.  Property   of  the  state. 

§  671.  Who  may  own  property. 

§  672.  Aliens   inheriting   must   claim   within   five   years. 

§669.  OWNER.  All  property  has  an  owner,  whether  that 
owner  is  the  state,  and  the  property  public,  or  the  owner 
an  individual,  and  the  property  private.  The  state  ma}'  also 
hold  property  as  a  private  proprietor. 

History:     Enacted  March  21,  1872. 

§670.  PROPERTY  OF  THE  STATE.  The  state  is  the 
owner  of  all  land  below  tide-water,  and  below  ordinary 
high-water  mark,  bordering  upon  tide-water  within  the  state; 
of  all  land  below  the  water  of  a  navigable  lake  or  stream; 
of  all  property  lawfully  appropriated  by  it  to  its  own  use; 
of  all  property  dedicated  to  the  state;  and  of  all  property  of 
which  there  is  no   other  owner. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.   217. 

396 


Tit.II,ch.I.]        WHO  MAY  OWN— INHERITINO.  §§671,672 

§671.  WHO  MAY  OWN  PROPERTY.  Any  person, 
whether  citizen  or  alien,  may  take,  hold,  and  dispose  of 
property,   real  or  personal,  within   this  state. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1S74, 
Code   Amdts.    1873-4,   p.    218. 


§  672.  ALIENS  INHERITING  MUST  CLAIM  WITHIN 
FIVE  YEARS.  If  a  non-resident  alien  takes  by  succession, 
he  must  appear  and  claim  the  property  within  five  years 
from  the  time  of  succession,  or  be  barred.  The  property  in 
such  case  is  disposed  of  as  provided  in  title  eight,  part  three. 
Code  of  Civil   Procedure. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  391, 
held  unconstitutional,   see  liistory,   §  4   ante. 


397 


§678  CIVIL    CODE.  [Div.II.Pt.I. 


CHAPTER  II. 

MODIFICATIONS  OF  OWNERSHIP. 

Article  I.  Interests  in  Property,  §§  678-703. 

II.  Conditions  of  Ownership,  §§707-711. 

III.  Restraints  upon  Alienation,   §§715-718. 

IV.  Accumulations,   §§  722-726. 


ARTICLE    I. 

INTERESTS   IN  PROPERTY. 

§  678.  Ownership,   absolute   or   qualified. 

§  679.  When   absolute. 

§  680.  When  qualified. 

§  681.  Several    ownership,    what. 

§  682.  Ownership    of   several   persons. 

§  683.  Joint   interest,    what. 

§  684.  Partnership   interest,  what. 

§  685.  Interest   in   common,   what. 

§  686.  What   interests   are    in   common. 

§  687.  Community  property. 

§  688.  Interest  as  to  time. 

§  689.  Present    interest,    what. 

§  690.  Future    interest,    what. 

§  691.  Perpetual   interest,    what. 

§  692.  Limited   interest,    what. 

§  693.  Kinds  of  future   interests. 

§  694.  Vested    interests. 

§  695.  Contingent  interests. 

§  696.  Two    or    more    future    interests. 

§  697.  Certain  future  'interests  not  to  be  void. 

§  698.  Posthumous  children. 

§  699.  Qualities  of  expectant  estates. 

§  700.  Same.      [Mere  possibility  of  interest.] 

§  701.  Interests    in    real   property. 

§  702.  Same.      [Names   and  classification   of  interests.] 

§  703.  What  future   interests   are  recognized. 

398 


Tit.II,ch.]],art.l.]  OWNERSHIP— KINDS  OF.  §§  678-682 

§678.     OWNERSHIP,    ABSOLUTE    OR    QUALIFIED. 

The  ownership  of  property  is  either: 

1.  Absolute;  or, 

2.  Qualified. 

History:     Enacted  March   21,  1872. 

§679.  WHEN  ABSOLUTE.  The  ownership  of  property 
is  absolute  when  a  single  person  has  the  absolute  dominion 
over  it,  and  may  use  it  or  dispose  of  it  according  to  his  pleas 
ure,  subject  only  to  general  laws. 

History:     Enacted  March  21,  1872. 

§680.  WHEN  QUALIFIED.  The  ownership  of  propert> 
is  qualified: 

l.When  it  is  share'd  with  one  or  more  persons; 

2.  When  the  time  of  enjoyment  is  deferred  or  limited; 

3.  When  the  use  is  restricted. 

History:     Enacted  March   21,  1872. 

§681.     SEVERAL    OWNERSHIP,   WHAT.     The    owner 
ship  of  property   by  a  single  person   is   designated   as   a   sole 
or  several  ownership. 

History:     Enacted  March   21,  1872. 

§682.     OWNERSHIP    OF    SEVERAL    PERSONS.     The 

ownership  of  property  by  several  persons  is  either: 

1.  Of  joint  interests; 

2.  Of  partnership   interests; 

3.  Of  interests  in  common; 

1.  Of  community  interest  of  husband  and  wife. 

History:  Enacted  March  21,  1872;  amended  by  Code  Coninii.'^- 
sion.  Act  March  16.  1901,  Stats,  and  Anidts.  1900-1,  p.  391,  held 
unconstitutional,  see  history,   §  4  ante. 

399 


§§683-687  CIVIL  CODE.  [Div.II,Pt.I. 

§683.  JOINT  INTEREST,  WHAT.  A  joint  interest  is 
one  owned  by  several  persons  in  equal  shares,  by  a  title 
created  by  a  single  will  or  transfer,  when  expressly  declared 
in  the  will  or  transfer  to  be  a  joint  tenancy,  or  when  granted 
or  devised  to  executors  or  trustees  as  joint  tenants. 

Historj-:  Enacted  March  21,  1S72;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  391,  held 
unconstitutional,   see  history,   §  4   ante. 

§684.  PARTNERSHIP  INTEREST,  WHAT.  A  part- 
nership interest  is  one  owned  by  several  persons,  in  partner- 
ship, for  partnership  purposes. 

History:      Enacted  March   21,  1872. 

§685.  INTEREST  IN  COMMON,  WHAT.  An  interest 
in  common  is  one  owned  by  several  persons,  not  in  joint 
ownership  or  partnership. 

History:      Enacted  March   21,  1872. 

§686.  WHAT  INTERESTS  ARE  IN  COMMON.  Every 
interest  created  in  favor  of  several  persons  in  their  own 
right  is  an  interest  in  common,  unless  acquired  by  them  in 
partnership,  for  partnership  purposes,  or  unless  declared  in 
its  creation  to  be  a  joint  interest,  as  provided  in  section 
six  hundred  and  eighty-three,  or  unless  acquired  as  com- 
munity property. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  391,  held 
unconstitutional,   see  history,   §  4   ante. 

§687.  COMMUNITY  PROPERTY.  Community  prop- 
erty is  property  acquired  by  husband  and  wife,  or  either, 
during  marriage,  when  not  acquired  as  the  separate  property 
of  either. 

History:     Enacted  March  21,  1872. 

400 


Tit.II,ch.II,art.I.]    INTEREST— KINDS  OF.  §§688-694 

§688.  INTERESTS  AS  TO  TIME.  In  respect  to  the 
time  of  enjoyment,  an  interest  in  property  is  either: 

1.  Present  or  future;   and, 

2.  Perpetual    or   limited. 

History:     Enacted  March  21,   1872. 

§689.  PRESENT  INTEREST,  WHAT.  A  present  in- 
terest entitles  the  owner  to  the  immediate  possession  of 
the  property. 

History:     Enacted  March  21,   1S72. 

§  690.  FUTURE  INTEREST,  WHAT.  A  future  interest 
entitles  the  owner  to  the  possession  of  the  property  only  at 
a  future  period. 

History:     Enacted  March  21,   1872. 

§691.  PERPETUAL  INTEREST,  WHAT.  A  perpet- 
ual interest  has  a  duration  equal  to  that  of  the  property. 

History:     Enacted  March  21,   1872. 

§692.  LIMITED  INTEREST,  WHAT.  A  limited  inter- 
est has  a  duration  less  than  that  of  the  property. 

History:     Enacted  March  21,   1872. 

§693.  KINDS  OF  FUTURE  INTERESTS.  A  future 
interest  is  either: 

1.  Vested;  or, 

2.  Contingent. 

Historj-:     Enacted  March  21,  1872. 

§  694.  VESTED  INTERESTS.  A  future  interest  is  vested 
when  there  is  a  person  in  being  who  would  have  a  right, 
defeasible    or   indefeasible,    to    the    immediate   possession    of 

401 


§§695-699  CIVIL  code.  [Div.II.Pt.I. 

the  property,  upoii  the  ceasing  of  the  intermediate  or 
precedent  interest. 

History:     Enacted  March  21,   1872. 

§695.  CONTINGENT  INTERESTS.  A  future  interest 
is  contingent,  whilst  the  person  in  whom,  or  the  event  upon 
which,  it  is  limited  to  take  effect  remains  uncertain. 

History:     Enacted  March  21,   1872. 

§696.     TWO   OR  MORE  FUTURE  INTERESTS.     Two 

or  more  future  interests  may  be  created  to  take  effect  in 
the  alternative,  so  that  if  the  first  in  order  fails  to  vest, 
the  next  in  succession  shall  be  substituted  for  it,  and  take 
effect  accordingly. 

History:     Enacted  March  21,   1872. 

§  697.  CERTAIN  FUTURE  INTERESTS  NOT  TO 

BE  VOID.  A  future  interest  is  not  void  merely  because  of 
the  improbability  of  the  contingency  on  which  it  is  limited 
to  take  effect. 

History-:     Enacted  March  21,   1872. 

§  698.  POSTHUMOUS  CHILDREN.  When  a  future  in- 
terest is  limited  to  successors,  heirs,  issue,  or  children, 
posthumous  children  are  entitled  to  take  in  the  same  man- 
ner as  if  living  at  the  death  of  their  parents. 

History:     Enacted  March  21,   1872. 


§699.     QUALITIES       OF      EXPECTANT      ESTATES. 

Future    interests    pass    by    succession,    will,    and    transfer,    in 
the  same  manner  as  present  interests. 

History:     Enacted  March  21,   1872. 

402 


Tit.II,ch.II,art.I.]      INTEREST  AND   REALTY.  §§700-703 

§7C0.  SAME.  [MERE  POSSIBILITY  NOT  AN  IN- 
TEREST.] A  mere  possibility,  such  as  the  expectancy  ot 
an  heir  apparent,  is  not  to  be  deemed  an  interest  of  any 
kind. 

History:     Enacted  March  21,   1S72. 

§  701.  INTERESTS  IN  REAL  PROPERTY.  In  respect 
to  real  or  immovable  property,  the  interests  mentioned  in 
tliis  chapter  are  denominated  estates,  and  are  specially  named 
and   classified  in   part   two   of  this   division. 

History:     Enacted  March  21,   1S72. 

§  702.  SAME.  [NAMES  AND  CLASSIFICATION  OF 
INTERESTS.]  The  names  and  classification  of  interests  in 
real  property  have  only  such  application  to  interests  in 
personal  property  as  is  in  this  division  of  the  code  expressly 
provided. 

Hl.story:  Enacted  March  21,  1872;  amended  by  Code  Commi.s- 
sion,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  391,  held 
unconstitutional,   see  history,   §  4   ante. 

§703.  WHAT  FUTURE  INTERESTS  ARE  RECOG- 
NIZED. No  future  interest  in  property  is  recognised  by 
the  lavv^,  except  such  as  is  defined  in  this  division  of  the 
code. 

Hi.story;  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  392,  held 
unconstitutional,   see  history,   §  4   ante. 


403 


§§707-710  CIVIL  CODE.  [Div.II.Pt.I. 


ARTICLE  II. 

CONDITIONS   OF    OWNERSHIP. 

§  707.  Fixing   the   time   of   enjoyment. 

§  708.  Conditions. 

§  709.  Certain  conditions  precedent  void. 

§  710.  Conditions    restraining   marriage.      [Void  when.] 

§  711.  Conditions    restraining    alienation    void. 

§707.  FIXING  TIME  OF  ENJOYMENT.  The  time 
when  the  enjoyment  of  property  is  to  begin  or  end  may  be 
determined  by  computation,  or  be  made  to  depend  on  events. 
Tn  the  latter  case,  the  enjoyment  is  said  to  be  upon  con- 
dition. 

Hi.story:      Enacted  March   21,  1872. 

§  708.  CONDITIONS.  Conditions  are  precedent  or  sub- 
sequent. The  former  fix  the  beginning,  the  latter  the  end- 
ing,  of   the   right. 

History:      Enacted  March   21,  1872. 

§709.     CERTAIN   CONDITIONS  PRECEDENT  VOID. 

If  a  condition  precedent  requires  the  performance  of  an 
act  wrong  of  itself,  the  instrument  containing  it  is  so  far 
void,  and  the  right  cannot  exist.  If  it  requires  the  perform- 
ance of  an  act  not  wrong  of  itself,  but  otherwise  unlawful, 
the  instrument  takes  efifect  and  the  condition  is  void. 

Hlstoo's  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  392, 
held  unconstitutional,   see  history,  §  4  ante. 

§710.  CONDITIONS  RESTRAINING  MARRIAGE. 
[VOID  WHEN.]  Conditions  imposing  restraints  upon  mar- 
riage, except  upon  the  marriage  of  a  minor,  are  void;  but  this 

404 


Tit. II, ch. II, art. II.]    RESTRAINING  ALIENATION.  §711 

does  not  affect  limitations  where  the  intent  was  not  to  for- 
bid marriage,  but  only  to  give  the  use  until  marriage. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code   Amdts.    1873-4,  p.    218. 

§711.  CONDITIONS  RESTRAINING  ALIENATION 
VOID.  Conditions  restraining  alienation,  when  repugnant 
to  the  interest  created,  are  void. 

History:     Enacted  March   21,   1S72. 


41)5 


§§715-717  CIVIL  CODE.  [Div.II,Pt.I. 


ARTICLE  III. 

RESTRAINTS    UPON    ALIENATION. 

§  715.     How  long-  it  may  be  suspended. 

§  716.     Future    Interests    void,    which    suspend   power    of    aliena- 
tion. 
§  717.     Leases  of  agricultural  land,  for  over  fifteen  years,   void. 
§  718.     Lease  of  city  lots,  for  over  ninety-nine  years,  void. 

§715.     HOW   LONG  IT   MAY   BE   SUSPENDED.     The 

absolute  power  of  alienation  cannot  be  suspended,  by  any 
limitation  or  condition  whatever,  for  a  longer  period  than 
during  the  continuance  of  the  lives  of  persons  in  being  at 
the  creation  of  the  limitation  or  condition,  except  in  a 
single  case  mentioned  in  section  seven  hundred  and  seventy- 
two. 

History:     Enacted  March   21,   1S72. 

§  716.  FUTURE  INTERESTS  VOID,  WHICH  SUS- 
PEND POWER  OF  ALIENATION.  Every  future  interest 
is  void  in  its  creation  which,  by  any  possibility,  may  suspend 
the  absolute  power  of  alienation  for  a  longer  period  than  is 
prescribed  in  this  chapter.  Such  power  of  alienation  is  sus- 
pended when  there  are  no  persons  in  being  by  whom  an 
absolute  interest  in  possession  can  be  conveyed. 

History:     Enacted  March  21,  1872. 

§717.  LEASE  OF  AGRICULTURAL  LAND,  FOR 
OVER  FIFTEEN  YEARS,  VOID.  No  lease  or  grant  of 
land  for  agricultural  or  horticultural  purposes  for  a  longer 
period  than  fifteen  3-ears,  in  which  shall  be  reserved  any 
rent  or  service  of  any  kind,  shall  be  valid;  provided,  that 
any   land   of   a   municipality   used    for   agricultural    or   horti- 

406 


Tit.II,ch.Il,art.lII.]      LEASE  OF  CITY  LOTS.  §718 

cultural  purposes  and  upon  which  is  discharged  sewage  or 
waste  water  may  be  leased  for  a  period  not  exceeding 
twenty-live  years. 

Hi.story:  Enacted  March  21,  1872;  amended  March  26,  1895, 
Stats,  and  Amdts.  1895,  p.  75;  April  19.  1909,  Stats,  and  Amdts. 
1909,  p.  1000;  May  4,  1915,  Stats,  and  Amdts.  1915,  p.  349.  In 
effect   August    8,    ]915. 

§  718.  LEASE  OF  CITY  LOTS,  FOR  OVER  NINETY- 
NINE  YEARS,  VOID.  No  lease  or  grant  of  any  town  or 
city  lot  for  a  longer  period  than  ninety-nine  years,  in  which 
shall  be  reserved  any  rent  or  service  of  any  kind,  sliall  be 
valid; 

[Property  of  minor  or  incompetent.]  Provided,  that  the 
property  of  any  municipality,  or  any  minor  or  incompetent 
person,  shall  not  be  leased  for  a  longer  period  than  ten 
years,  excepting  that  the  sewer  farm  of  a  municipality  and 
all  waters  and  sewage  used  or  discharged  thereon  may  be 
leased  for  a  period  not  exceeding  twenty-five   years. 

HLstory:  Enacted  March  21.  1872;  amended  March  20,  1903, 
Stats,  and  Amdts.  1903,  p.  247;  May  1,  1911,  Stats,  and  Amdts. 
1911,  p.  1391;  May  4,  1915,  Stats,  and  Amdts.  1915,  p.  349.  In 
effect  August  8,   1915. 


407 


§§722-724  CIVIL  code.  [Div.II,Pt.I. 


ARTICLE  IV. 

ACCUMULATIONS. 

§  722.  Dispositions  of  income. 

§  723.  Accumulations,    when    void. 

§  724.  Accumulation    of   income. 

§  725.  Other  directions,  when  void  in  part. 

§  726.  Application    of    income    to    support,    etc.,    of    minor. 

§  722.  DISPOSITIONS  OF  INCOME.  Dispositions  of 
the  income  of  property  to  accrue  and  to  be  received  at  any 
time  subsequent  to  the  execution  of  the  instrument  creating 
such  disposition,  are  governed  by  the  rules  prescribed  in  this 
title  in  relation  to  future  interests. 

H!.story:     Enacted  March   21,   1872. 

■^23.  ACCUMULATIONS,  WHEN  VOID.  All  direc- 
tions for  the  accumulation  of  the  income  of  property,  except 
such  as  are  allowed  by  this  title,  are  void. 

History:     Enacted  March   21,   1872. 

§724.  ACCUMULATION  OF  INCOME.  An  accumula- 
tion of  the  income  of  property,  for  the  benefit  of  one  or  more 
persons,  may  be  directed  by  any  will  or  transfer  in  writing 
sufficient  to  pass  the  property  out  of  which  the  fund  is  to 
arise,  as  follows: 

1.  If  such  accumulation  is  directed  to  commence  on  the 
creation  of  the  interest  out  of  which  the  income  is  to  arise, 
it  must  be  made  for  the  benefit  of  one  or  more  minors  then 
in  being,  and  terminate  at  the  expiration  of  their  minority; 
or, 

2.  If  such  accumulation  is  directed  to  commence  at  any 
time  subsequent  to  the  creation  of  the  interest  out  of  which 
the   income   is   to   arise,    it   must  commence   within   the   time 

408 


Tit.II,ch.II,art.IV.]    INCOME— APPLICATION.  §§725,726 

in  this  title  permitted  for  the  vesting  of  future  interests,  and 
during  the  minority  of  the  beneficiaries,  and  terminate  at 
the  expiration  of  such  minority. 

History:     Enacted  March  21,   1872. 

§  725.     OTHER  DIRECTIONS,  WHEN  VOID  IN  PART. 

If  in  either  of  the  cases  mentioned  in  the  last  section  the 
direction  for  an  accumulation  is  for  a  longer  term  than 
during  the  minority  of  the  beneficiaries,  the  direction  only, 
whether  separable  or  not  from  other  provisions  of  the  instru- 
ment, is  void  as  respects  the  time  beyond  such   minority. 

History:     Enacted  March   21,   1872. 

§726.  APPLICATION  OF  INCOME  TO  SUPPORT, 
ETC.,  OF  MINOR.  When  a  minor  for  whose  benefit  an  ac- 
cumulation has  been  directed  is  destitute  of  other  sufficient 
means  of  support  and  education,  the  proper  court,  upon 
application,  may  direct  a  suitable  sum  to  be  applied  thereto 
out  of  the  fund. 

History:     Enacted  March  21.  1872. 


409 


B732,733  CIVIL  CODE.  [Div.II,Pt.I. 


CHAPTER  III. 

RIGHTS    OF    OWNERS. 

§  732.     Increase   of  property. 

§  733.     In  certain  cases,  who  entitled  to  income  of  property. 

§732.  INCREASE  OF  PROPERTY.  The  owner  of  a 
thing  owns  also  all  its  products  and  accessions. 

History:      Enacted  March   21,   1872. 

§733.  IN  CERTAIN  CASES,  WHO  ENTITLED  TO 
INCOME  OF  PROPERTY.  When,  in  consequence  of  a 
valid  limitation  of  a  future  interest,  there  is  a  suspension  of 
the  power  of  alienation  or  of  the  ownership  during  the  con- 
tinuation of  which  the  income  is  undisposed  of,  and  no  valid 
direction  for  its  accumulation  is  given,  sitch  income  belongs 
to  the  persons  presumptively  entitled  to  the  next  eventual 
interest. 

History:     Enacted  March   21,   1S72. 


410 


Tit.II,ch.lV.]  ■        FUTURE    INTEREST.  §§739-741 

CHAPTER  IV. 

TERMINATION    OF   OWNERSHIP. 

§  739.     Future   interests,   when   defeated. 
§  740.      Same.      [How    defeated.] 
§  741.      Future  Interests,  when  not  defeated. 

"§  742.     Same.  [Contingency  happening,  how  future  interest  takes 
effect.] 

§739.     FUTURE    INTERESTS,,    WHEN    DEFEATED. 

A  future  interest,  depending  on  the  contingency  of  the  death 
of  any  person  without  successors,  heirs,  issue,  or  children,  is 
defeated  by  the  birth  of  a  posthumous  child  of  such  person, 
capable   of  taking  by  succession. 

History:     Enacted  March   21,   1872. 

§740.  SAME.  [HOW  DEFEATED.]  A  future  interest 
may  be  defeated  in  any  manner  or  by  any  act  or  means 
which  the  party  creating  such  interest  provided  for  or  au- 
thorized in  the  creation  thereof;  nor  is  a  future  interest,  thus 
liable  to  be  defeated,  to  be  on  that  ground  adjudged  void 
in    its    creation. 

History:     Enacted  March  21,  1872. 

§  741.  FUTURE  INTERESTS,  WHEN  NOT  DEFEAT- 
ED. No  future  interest  can  be  defeated  or  barred  by  any 
alienation  or  other  act  of  the  owner  of  the  intermediate  or 
precedent  interest,  nor  by  any  destruction  of  such  precedent 
interest  by  forfeiture,  surrender,  merger,  or  otherwise,  ex- 
cept as  provided  by  the  next  section,  or  where  a  forfeiture 
is  imposed  by  stattite  as  a  penalty  for  the  violation  thereof. 

History:     Enacted  March   21,   1872. 
411 


§§742-749  CIVIL  code.  .         [Div.II.Pt.I. 

742.  SAME.  [CONTINGENCY  HAPPENING,  HOW 
FUTURE  INTEREST  TAKES  EFFECT.]  No  future  in- 
terest, valid  in  its  creation,  is  defeated  by  the  determination 
of  the  precedent  interest  before  the  happening  of  the  con- 
tingency on  which  the  future  interest  is  limited  to  take  ef- 
fect; but  should  such  contingency  afterwards  happen,  the  fu- 
ture interest  takes  effect  in  the  same  manner  and  to  the  same 
extent  as  if  the  precedent  interest  had  continued  to  the  same 
period. 

History:     Enacted  March  21,   1872. 


TITLE  III. 

GENERAL  DEFINITIONS. 

§  748.     Income,  what. 

§  749.     Time  of  creation,  what. 

§748.  INCOME,  WHAT.  The  income  of  property,  as 
the  term  is  used  in  this  part  of  the  code,  includes  the  rents 
and  profits  of  real  property,  the  interest  of  money,  dividends 
upon  stock,  and  other  produce  of  personal  property. 

History:     Enacted  March  21,  1872. 

§  749.  TIME  OF  CREATION,  WHAT.  The  delivery  of 
the  grant,  where  a  limitation,  condition,  or  future  interest  is 
created  by  grant,  and  the  death  of  the  testator,  where  it  is 
created  by  will,  is  to  be  deemed  the  time  of  the  creation  of 
the  limitation,  condition,  or  interest,  within  the  meaning  of 
this  part  of  the  code. 

History:     Enacted  March  21,  1872. 


412 


Tit.I.]  GENERAL  PROVISIONS.  §  755 


PART  II. 

REAL  OR  IMMOVABLE  PROPERTY. 
Title  I.     General  Provisions,  §  755. 

II.     Estates  in  Real  Property,  §§761-811. 

III.  Rights    and   Obligations    of   Owners,   §§818-843 

IV.  Uses  and  Trusts,  §§847-871. 

V.     Powers,    §§878-940.     [Repealed.] 


TITLE   I. 

GENERAL,  PROVISIONS. 
§  7.55.      Real   property,   how   governed. 

§755.  REAL  PROPERTY,  HOW  GOVERNED,  Real 
property  within  this  state  is  governed  by  the  law  of  this 
state,  except  where  the  title  is  in  the  United  States. 

History:  Enacted  March  21,  ]872;  amended  March  oO,  1874, 
Code  Amdts.   1873-4,  p.  218. 


413 


J 


Tit. II, ch. I.]  ESTATES,   ENUMERATION.  §751 


TITLE  II. 

ESTATES  IN  REAL  PROPERTY. 

Chapter  I.     Estates  in  General,  §§761-781. 

II.     Termination    of    Estates,    §§789-793. 
III.     Servitude,   §§801-811. 


CHAPTER  I. 

ESTATES  IN  GENERAL. 

Enumeration  of  estates. 

What  estate  a  fee  simple. 

Conditional   fees  and   estates   tail   abolished. 

Certain   remainders  valid. 

Freeholds.     Chattels  real.     Chattel  interests. 

Estate  for  life  of  a  third  person,  when  a  freehold,  etc. 

Future   estates,   what. 

Reversions. 

Remainders. 

Suspended  ownership. 

Suspension   by   trust. 

Contingent  remainder  in   fee. 

Remainders,   future  and  contingent  estates,  how  created. 

Limitation  of  successive  estates  for  life. 

Remainder  upon  estates  for  life  of  third  person. 

Contingent   remainder   on   a   term   of  years. 

Remainder   of   estates  for   life. 

Remainder  upon  a  contingency. 

Heirs  of  a  tenant  for  life,  wlien  to  take  as  purchasers. 

Construction  of  certain  remainders. 

Effect  of  power  of  appointment. 

§761.  ENUMERATION  OF  ESTATES.  Estates  in  real 
property,  in  respect  to  the  duration  of  their  enjoyment,  are 
either: 

415 


§ 

761. 

§ 

762. 

§ 

76  3. 

§ 

764. 

§ 

765. 

§  766. 

§  767. 

§ 

768. 

§ 

769. 

§ 

770. 

§ 

771. 

§  772. 

§ 

773. 

§ 

774. 

§ 

775. 

§ 

776. 

§ 

777. 

§  778. 

§ 

779. 

§ 

780. 

§ 

781. 

§§762-765  CIVIL  CODE.  [Div.II.Pt.II. 

1.  Estates  of  inheritance  or  perpetual  estates; 

2.  Estates  for  life; 

3.  Estates  for  years;  or, 

4.  Estates  at  will. 

History:     Enacted  March  21,  1872. 

§  762.  WHAT  ESTATE  A  FEE  SIMPLE.  Every  estate 
of  inheritance  is  a  fee,  and  every  such  estate,  when  not  de- 
feasible or  conditional,  is  a  fee  simple  or  an  absolute  fee. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  218;  amended  by  Code  Commission,  Act. 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  322,  held  unconsti- 
tutional, see  history,   §  4  ante. 

§763.  CONDITIONAL  FEES  AND  ESTATES  TAIL 
ABOLISHED,  Estates  tail  are  abolished,  and  every  estate 
which  would  be  at  common  law  adjudged  to  be  a  fee  tail  is  a 
fee  simple;  and  if  no  valid  remainder  is  limited  thereon,  is 
a  fee  simple  absolute. 

Hi-story:     Enacted  March  21,  1872. 

§  764.  CERTAIN  REMAINDERS  VALID.  Where  a  re- 
mainder in  fee  is  limited  upon  any  estate,  which  would  by 
the  common  law  be  adjudged  a  fee  tail,  such  remainder  is 
valid  as  a  contingent  limitation  upon  a  fee,  and  vests  in  pos- 
session on  the  death  of  the  first  taker,  without  issue  living 
at  the  time  of  his  death. 

History:     Enacted  March  21,  1872. 

§  765.  FREEHOLDS.  CHATTELS  REAL.  CHATTEL 
INTERESTS.  Estates  of  inheritance  and  for  life  are  called 
estates  of  freehold;  estates  for  years  are  chattels  real;  and 
estates  at  will  are  chattel  interests,  but  are  not  liable  as  such 
to   sale   on    execution. 

History:     Enacted  March  21,  1872. 

416 


Tit. II, ch. I.]  ESTATES  AND  REVERSIONS.  §§766-770 

§766.  ESTATE  FOR  LIFE  OF  THIRD  PERSON, 
WHEN  A  FREEHOLD,  ETC.  An  estate  during  the  life  of 
a  third  person,  whether  limited  to  heirs  or  otherwise,  is  a 
freehold. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  218. 


§767.  FUTURE  ESTATES,  WHAT.  A  future  estate 
may  be  limited  by  the  act  of  the  party  to  commence  in  pos- 
session at  a  future  day,  either  without  the  intervention  of  a 
precedent  estate,  or  on  the  termination,  by  lapse  of  time  or 
otherwise,  of  a  precedent  estate  created  at  the  same  time. 

History:     Enacted  March  21,  1872. 


§768.  REVERSIONS.  A  reversion  is  the  residue  of  an 
estate  left  by  operation  of  law  in  the  grantor  or  his  succes- 
sors, or  in  the  successors  of  a  testator,  commencing  in  pos- 
session on  the  determination  of  a  particular  estate  granted 
or  devised. 

History:     Enacted  March  21,  1872. 

§  769.  REMAINDERS.  When  a  future  estate,  other  than 
a  reversion,  is  dependent  on  a  precedent  estate,  it  may  be 
called  a  remainder,  and  may  be  created  and  transferred  by 
that  name. 

History:     Enacted  March  21,  1872. 

§  770.  SUSPENDED  OWNERSHIP.  The  absolute  own- 
ership of  a  term  of  years  cannot  be  suspended  for  a  longer 
period  than  the  absolute  power  of  alienation  can  be  suspend- 
ed in  respect  to  a  fee. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   218. 

14  417 


§§771-774  CIVIL  CODE.  [Div.lI.Pt.Il 

§771.  SUSPENSION  BY  TRUST.  The  suspension  of 
all  power  to  alienate  the  subject  of  a  trust,  other  than  a 
power  to  exchange  it  for  other  property  to  be  held  upon 
the  same  trust,  or  to  sell  it  and  reinvest  the  proceeds  to  be 
held  upon  the  same  trust,  is  a  suspension  of  the  power  of 
alienation,  within  the  meaning  of  section  seven  hundred  and 
fifteen. 

History:     Enacted  March  21,  1872. 

§  772.  CONTINGENT  REMAINDER  IN  FEE.  A  con- 
tingent remainder  in  fee  may  be  created  on  a  prior  remain- 
der in  fee,  to  take  effect  in  the  event  that  the  persons  to  whom 
the  first  remainder  is  limited  die  under  the  age  of  twenty- 
one  years,  or  upon  any  other  contingency  by  which  the  es- 
tate of  such  persons  may  be  determined  before  they  attain 
majority. 

History:     Enacted  March  21,  1872. 

§773.  REMAINDERS,  FUTURE  AND  CONTINGENT 
ESTATES,  HOW  CREATED.  Subject  to  the  rules  of  this 
title,  and  of  part  one  of  this  division,  a  freehold  estate,  as 
well  as  a  chattel  real,  may  be  created  to  commence  at  a  fu- 
ture day;  an  estate  for  life  may  be  created  in  a  term  of 
years,  and  a  remainder  limited  thereon;  a  remainder  of  a 
freehold  or  chattel  real,  either  contingent  or  vested,  may  be 
created,  expectant  on  the  determination  of  a  term  of  j^ears; 
and  a  fee  may  be  limited  on  a  fee,  upon  a  contingency,  which, 
if  it  should  occur,  must  happen  within  the  period  prescribed 
in  this  title. 

History:     Enacted  March  21,  1872. 

§774.  LIMITATION  OF  SUCCESSIVE  ESTATES 
FOR  LIFE.  Successive  estates  for  life  cannot  be  limited, 
except  to  persons  in  being  at  the  creation  thereof,  and  all 
life  estates  subsequent  to  those  of  persons  in  being  are  void; 
and  upon  the  death  of  those  persons,  the  remainder,  if  valid 

418 


Tit.II.ch.l.]  REMAINDERS.  §§775-779 

in  its  creation,  takes  effect  in  the  same  manner  as  if  no  other 
life  estate  had  been  created. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.   1873-4,   p.   219. 

§775.  REMAINDER  UPON  ESTATES  FOR  LIFE  OF 
THIRD  PERSON.  No  remainder  can  be  created  upon  suc- 
cessive estates  for  life,  provided  for  in  the  preceding  section, 
unless  such  remainder  is  in  fee;  nor  can  a  remainder  be  cre- 
ated upon  such  estate  in  a  term  for  years,  unless  it  is  for 
the  whole  residue  of  such  term. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,  p.   219. 

§776.  CONTINGENT  REMAINDER  ON  A  TERM  OF 
YEARS.  A  contingent  remainder  cannot  be  created  on  a 
term  of  years,  unless  the  nature  of  the  contingency  on  which 
it  is  limited  is  such  that  the  remainder  must  vest  in  interest 
during  the  continuance  or  at  the  termination  of  lives  in  be- 
ing at  the  creation  of  such  remainder. 

History:     Enacted  March  2],  1872. 

§777.     REMAINDER  OF  ESTATES     FOR     LIFE.     No 

estate  for  life  can  be  limited  as  a  remainder  on  a  term  of 
years,  except  to  a  person  in  being  at  the  creation  of  such 
estate. 

History:      Enacted  March   21,  1872. 

§778.  REMAINDER  UPON  A  CONTINGENCY.  A  re- 
mainder may  be  limited  on  a  contingency  which,  in  case  it 
should  happen,  will  operate  to  abridge  or  determine  the 
precedent  estate;  and  every  such  remainder  is  to  be  deemed 
a  conditional  limitation. 

History:     Enacted  March  21,  1872. 

§  779.  HEIRS  OF  A  TENANT  FOR  LIFE,  WHEN  TO 
TAKE  AS  PURCHASERS.  When  a  remainder  is  limited 
to  the  heirs,  or  heirs  of  the  body,  of  a  person  to  whom  a  life 

419 


§§780,781  CIVIL  CODE.  [Div.II.Pt.U. 

estate  in  the  same  property  is  given,  the  persons  who,  on 
the  termination  of  the  life  estate,  are  the  successors  or  heirs 
of  the  body  of  the  owner  for  life,  are  entitled  to  take  by 
virtue  of  the  remainder  so  limited  to  them,  and  not  as  mere 
successors  of  the  owner  for  life. 

History:     Enacted  March  21,  1S72. 

§780.  CONSTRUCTION  OF  CERTAIN  REMAIN- 
DERS. When  a  remainder  on  an  estate  for  life  or  for  years 
is  not  limited  on  a  contingency  defeating  or  avoiding  such 
precedent  estate,  it  is  to  be  deemed  intended  to  take  effect 
only  on  the  death  of  the  first  taker,  or  the  expiration,  by 
lapse  of  time,  of  such  term  of  years. 

■     History:     Enacted  March  21,  1872. 

§  781.     EFFECT  OF  POWER  OF  APPOINTMENT.     A 

general  or  special  power  of  appointment  does  not  prevent 
the  vesting  of  a  future  estate  limited  to  take  effect  in  case 
such  power   is  not  executed. 

History:     Enacted  March  21,  1872. 


420 


Tit.IJ,ch.II.]  TERMINATION  OF  ESTATES.  §§789-791 


CHAPTER  II. 

TERMINATION  OF  ESTATES. 

§  789.  Tenancy  at  will  may  be  terminated  by  notice. 

§  790.  Effect  of  notice. 

§  791.  Re-entry,  when  and  how  to  be  made. 

§  792.  Summary   proceedings   in   certain  cases  provided   for. 

§  793.  Notice  not  necessary  before  action. 

§  789.  TENANCY  AT  WILL  MAY  BE  TERMINATED 
BY  NOTICE.  A  tendency  [tenancy]  or  other  estate  at 
will,  however  created,  may  be  determined  by  the  landlord's 
giving  notice  in  writing  to  the  tenant,  in  the  manner  pre- 
scribed by  section  eleven  hundred  and  sixty-two  of  the  Code 
of  Civil  Procedure,  to  remove  from  the  premises  within  a  pe- 
riod of  not  less  than  thirty  days,  to  be  specified  in  the  no- 
tice. 

History:  Enacted  March  21,  1872;  amended  February  15,  1911, 
Stats,  and  Amdts.   1911,  p.   61. 

§790.  EFFECT  OF  NOTICE.  After  such  notice  has 
been  served,  and  the  period  specified  by  such  notice  has  ex- 
pired, but  not  before,  the  landlord  may  re-enter,  or  proceed 
according   to   law   to  recover   possession. 

History:     Enacted  March  21,  1872. 

§791.     RE-ENTRY,  WHEN  AND  HOW  TO  BE  MADE. 

Whenever  the  right  of  re-entry  is  given  to  a  grantor  or 
lessor  in  any  grant  or  lease,  or  otherwise,  such  re-entry  may 
be  made  at  any  time  after  the  right  has  accrued,  upon  three 
days'  notice,  as  provided  in-  sections  eleven  hundred  and 
sixty-one  and  eleven  hundred  and  sixty-two,  Code  of  Civil 
Procedure. 

History:     Enacted  March  21,  1872. 

421 


§§792,793  CIVIL  code.  [Div.Il.Pt.II. 

§792.  SUMMARY  PROCEEDINGS  IN  CERTAIN 
CASES  PROVIDED  FOR.  Summary  proceedings  for  ob- 
taining possession  of  real  property  forcibly  entered,  or  forc- 
ibly and  unlawfully  detained,  are  provided  for  in  sections 
eleven  hundred  and  fifty-nine  to  eleven  hundred  and  seven- 
ty-five, both  inclusive,  of  the  Code  of  Civil  Procedure. 

History:     Enacted  March   21,   1872. 

§  793.     NOTICE  NOT  NECESSARY  BEFORE  ACTION. 

An  action  for  the  possession  of  real  property  leased  or 
granted,  with  a  right  of  re-entry,  may  be  maintained  at  anj- 
time,  after  the  right  to  re-enter  has  accrued,  without  the  no- 
tice prescribed  in  section  seven  hundred  and  ninety-one. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Slats,  and  Anidts.  1900-1.  p.  392,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   21,   1905,  Stats,   and  Amdts.  1905,  p.   599. 


422 


Tit. II, ch. TIL]  SERVITUDES  ATTACHED.  §801 


CHAPTER  III. 

SERVITUDES. 

§  801.  Servitudes    attached    to    land. 

§  802.  Servitudes  not  attached  to  land. 

§  803.  Designation  of  estates. 

§  804.  By  whom  grantable. 

§  805.  By  whom  held.  I 

§  806.  Extent  of  servitudes. 

§  807.  Apportioning  easements. 

§  808.  Rights   of   owner  of  future   e.state. 

§  809.  Actions    by   owner   and    occupant   of   dominant    tenement. 

§  810.  Actions  by  owner  of  servient  tenement. 

§  811.  How  extinguished. 

§801.     SERVITUDES     ATTACHED     TO     LAND.     The 

following  land  burdens,  or  servitudes  upon  land,  may  be  at- 
tached to  other  land  as  incidents  or  appurtenances,  and  are 
then   called   easements: 

1.  The   right   of  pasture; 

2.  The   right  of  fishing; 

3.  The  right  of  taking  game; 

4.  The  right  of  way; 

5.  The   right   of   taking   water,   wood,    minerals,   and    other 
things; 

6.  The   right   of  transacting  business  upon   land; 

7.  The   right    of    conducting   lawful   sports   upon   land; 

8.  The  right  of  receiving  air,  light,  or  heat  from  or  over, 
or  discharging  the  same  upon  or  over  land; 

9.  The   right   of   receiving  water  from  or   discharging   the 
same  upon  land; 

10.  The  right  of  flooding  land; 

11.  The    right    of    having    water    flow    without    diminution 
or  disturbance  of  any  kind. 

423 


§§802-804  CIVIL  CODE.  [Div.II.Pt.Il. 

12.  The  right  of  using  a  wall  as  a  party-wall; 

13.  The  right  of  receiving  more  than  natural  support  from 
adjacent  land  or  things  affixed  thereto; 

14.  The  right  of  having  the  whole  of  a  division  fence  main- 
tained by  a  coterminous  owner; 

15.  The  right  of  having  public  conveyances  stopped,  or 
of  stopping  the  same  on  land; 

16.  The  right  of  a  seat  in  church; 

17.  The  right  of  burial. 

Hi.story:  Enacted  March  21,  1S72;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  392,  held 
unconstitutional,  see  history,  §  4  ante. 

§802.     SERVITUDES     NOT     ATTACHED  TO  LAND. 

The   following   land   burdens,   or    servitudes   upon   land,    may 
be  granted  and  held,  though  not  attached  to  land: 

1.  The  right  to  pasture,  and  of  fishing  and  taking  game. 

2.  The  right  of  a  seat  in  church. 

3.  The  right  of  burial. 

4.  The   right  of  taking  rents  and  tolls. 

5.  The  right  of  way. 

6.  The  right  of  taking,  water,  wood,  minerals,  or  other 
things. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  219. 

§803.  DESIGNATION  OF  ESTATES.  The  land  to 
which  an  easement  is  attached  is  called  the  dominant  tene- 
ment; the  land  upon  which  a  burden  or  servitude  is  laid  is 
called  the  servient  tenement. 

History:     Enacted  March  21,  1872. 

§804.  BY  WHOM  GRANTABLE.  A  servitude  can  be 
created  only  by  one  who  has  a  vested  estate  in  the  servient 
tenement. 

History:     Enacted  March  21,  1872. 

424 


Tit.ir,ch.III.]  EXTENT  OF  SERVITUDE.  §§805-810 

§805.  BY  WHOM  HELD.  A  servitude  thereon  cannot 
be   held  by  the  owner  of  the  servient  tenement. 

^  History:     TOnacted  March  21,  1ST2. 

§806.  EXTENT  OF  SERVITUDES.  The  extent  of  a 
servitude  is  determined  by  the  terms  of  the  grant,  or  tlie 
nature  of  the  enjoyment  by  which  it  was  acquired. 

History:     Enacted  March   21,  1872. 

§807.  APPORTIONING  EASEMENTS.  In  case  of  par- 
tition of  the  dominant  tenement  the  burden  must  be  ap- 
portioned according  to  the  division  of  the  dominant  tene- 
ment, but  not  in  such  a  way  as  to  increase  the  burden  upon 
the    servient    tenement. 

History:     Enacted  March  21,  1S72. 

§808.     RIGHTS   OF   OWNER   OF   FUTURE   ESTATE. 

The  owner  of  a  future  estate  in  a  dominant  tenement  may 
use  easements  attached  thereto  for  the  purpose  of  viewing 
waste,  demanding  rent,  or  removing  an  obstruction  to  the 
enjoyment  of  such  easements,  although  such  tenement  is  oc- 
cupied by  a  tenant. 

History:     Enacted  March  21,  1872. 


§809.  ACTIONS  BY  OWNER  AND  OCCUPANT  OF 
DOMINANT  TENEMENT.  The  owner  of  any  estate  in 
a  dominant  tenement,  or  the  occupant  of  such  tenement,  may 
maintain  an  action  for  the  enforcement  of  an  easement  at- 
tached  thereto. 

History:     Enacted  March  21,  1872. 

§810.  ACTIONS  BY  OWNER  OF  SERVIENT  TENE- 
MENT.    The  owner  in  fee  of  a  servient  tenement  may  main- 

425 


§811  CIVIL    CODE.  [Div.II.Pt.lI. 

tain  an  action  for  the  possession  of  the  land,  against  any  one 
unlawfully  possessed  thereof,  though  a  servitude  exists  there- 
on in   favor  of  the  public. 

History:     Enacted  March  21,  1872. 

811.  HOW  EXTINGUISHED.  A  servitude  is  extin- 
guished: 

1.  By  the  vesting  of  the  right  to  the  servitude  and  the  right 
to  the  servient  tenement  in  the  same  person; 

2.  By  the  destruction  of  the  servient  tenement; 

3.  By  the  performance  of  any  act  upon  either  tenement,  by 
the  owner  of  the  servitude,  or  with  his  assent,  which  is 
incompatible  with  its  nature  or  exercise;  or, 

4.  When  the  servitude  was  acquired  by  enjoyment,  by  dis- 
use thereof  by  the  owner  of  the  servitude  for  the  period  pre- 
scribed for  acquiring  title  by  enjoyment. 

History:     Enacted  March  21,  1872. 


426 


Tit.lII,ch.I,art.I.]      RIGHTS  OF  OWNERS.  -§818 


TITLE  III. 
RIGHTS  AND  OBLIGATIONS  OF  OWNERS 
Chapter  I.     Rights  of  Owners,  §§818-834. 

II.     Obligations    of    Owners,    §§840-843. 


CHAPTER  I. 

RIGHTS  OF  OWNERS. 
Article   I.     Incidents   of   Ownership.    §§818-827. 
II.     Boundaries,    §§829-834. 


ARTICLE  I. 
INCIDENTS   OF   OWNERSHIP. 

§  SIS.  Rigfhts  of  tenant  for  life. 

§  819.  Rights  of   tenant  for  years,   etc. 

.§  820.  Same. 

§  821.  Rights  of  grantees  of  rents  and  reversion. 

§  822.  Assignee  of  lessee,   remedies  of  lessor  against. 

§  823.  Rights   of  lessees  and  their  assignees,  etc. 

§  824.  Remedy  on  leases  for  life. 

§  825.  Rent  dependent  on  life. 

§  826.  Remedy  of  reversioners,  etc. 

§  827.  Leases,   change   of  terms.      [Notice.] 

§818.     RIGHTS  OF  TENANT  FOR  LIFE.     The  ownei 

of  a  life  estate  may  use  the  land  in  the  same  manner  as  the 
owner  of  a  fee  simple,  except  that  he  must  do  no  act  to  the 
injury  of  the   inheritance. 

Hi.story:     Enacted  March  21,  1872. 

427 


§§819-822  CIVIL  CODE.  [Div.II,Pt.II. 

§819.     RIGHTS   OF  TENANT   FOR   YEARS,   ETC.     A 

tenant  for  years  or  at  will,  unless  he  is  a  wrong-doer  by  hold- 
ing over,  may  occupy  the  buildings,  take  the  annual  products 
of  the  soil,  work  mines  and  quarries  open  at  the  commence- 
ment of  his  tenancy. 

History:     Enacted  March  21,  1S72. 

§  820.  SAME.  A  tenant  for  years  or  at  will  has  no  other 
rights  to  the  property  than  such  as  are  given  to  him  by  the 
agreement  or  instrument  by  which  his  tenancy  is  acquired, 
or  by  the   last  section. 

History:     Enacted  March  21,  1872. 

§821.  RIGHTS  OF  GRANTEES  OF  RENTS  AND  RE- 
VERSION. A  person  to  whom  any  real  property  is  trans- 
ferred or  devised,  upon  which  rent  has  been  reserved,  or  to 
whom  any  such  rent  is  transferred,  is  entitled  to  the  same 
remedies  for  recovery  of  rent,  for  non-performance  of  any 
of  the  terms  of  the  lease,  or  for  any  waste  or  cause  of  for- 
feiture, as  his  grantor  or  devisor  might  have  had. 

History:     Enacted  March  21,  1872. 

§822.  ASSIGNEE  OR  LESSEE,  REMEDIES  OF  LES- 
SOR AGAINST.  Whatever  remedies  the  lessor  of  any  real 
property  has  against  his  immediate  lessee  for  the  breach 
of  any  agreeinent  in  the  lease,  or  for  recovery  of  the  pos- 
session, he  has  against  the  assignees  of  the  lessee,  for  any 
cause  of  action  accruing  while  they  are  such  assignees,  ex- 
cept where  the  assignment  is  made  by  way  of  security  for  a 
loan,  and  is  not  accompanied  by  possession  of  the  premises. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  220;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  393,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905.   Stats,   and  Amdts.   1905,  p.   599. 

428 


Tit.III,ch.I,art.I.]   LESSEES  AND  ASSIGNS.  §§823-827 

§823.  RIGHTS  OF  LESSEES  AND  THEIR  ASSIGN- 
EES, ETC.  Whatever  remedies  the  lessee  of  any  real  prop- 
erty may  have  against  his  immediate  lessor,  for  the  breach  of 
any  agreement  in  the  lease,  he  may  have  against  the  assigns 
of  the  lessor,  and  the  assigns  of  the  lessee  may  have  against 
the  lessor  and  his  assigns,  except  upon  covenants  against 
encumbrances  or  relating  to  the  title  or  possession  of  the 
premises. 

Hlstorj-:     Enacted  March  21,  1872. 

§824.  REMEDY  ON  LEASES  FOR  LIFE.  Rent  due 
upon  a  lease  for  life  may  be  recovered  in  the  same  manner 
as  upon  a  lease  for  years. 

History:     Enacted  March  L'l,  1872. 

§825.  RENT  DEPENDENT  ON  LIFE.  Rent  depend- 
ent on  the  life  of  a  person  may  be  recovered  after  as  well  as 
before    his    death. 

History:     Enacted  March  21,  1S72. 

§  826.  REMEDY  OF  REVERSIONERS,  ETC.  A  person 
having  an  estate  in  fee,  in  remainder  or  reversion,  may  main- 
tain an  action  for  any  injury  done  to  the  inheritance,  not- 
withstanding an  intervening  estate  for  life  or  years,  and  al- 
though, after  its  commission,  his  estate  is  transferred,  and  he 
has  no  interest  in  the  property  at  the  commencement  of  the 
action. 

History:     Enacted  March  21,  1872. 

§827.     LEASE,    CHANGE   OF   TERM.     [NOTICE.]     In 

all  leases  of  lands  or  tenements,  or  of  any  interest  therein, 
from  month  to  month,  the  landlord  may,  upon  giving  notice 
in  writing  at  least  thirty  days  before  the  expiration  of  the 
month,  change  the  terms  of  the  lease  to  take  effect  at  the 
expiration   of  the  month. 

429 


§827  CIVIL   CODE.  [Div.II.Pt.II. 

The  notice,  when  served  upon  the  tenant,  shall  of  itself 
operate  and  be  effectual  to  create  and  establish,  as  a  part 
of  the  lease,  the  terms,  rent,  and  conditions  specified  in  the 
notice,  if  the  tenant  shall  continue  to  hold  the  premises  after 
the  expiration  of  the  month. 

History:  Enacted  March  30,  1874,  Code  Amdts.  1873-4,  p.  220; 
amended  February  26,  1907,  Stats,  and  Amdts.  1907,  p.  58,  Kerr's 
Stats,  and  Amdts.  1906-7,  p.  423.  In  effect  from  and  after  pass- 
age. 


430 


Tit.III,ch.I,art.II.]     BOUNDARIES  BY  WATER.  §§829-831 


ARTICLE  II. 

BOUNDARIES. 

§  829.  Rights   of   owner. 

§  830.  Boundaries  by  water. 

^  831.  Boundaries  by  ways. 

§  832.  Lateral  and  subjacent  support. 

§  833.  Trees  whose  trunks  are  wliolly  on  land  of  one. 

§  834.  Dine  trees. 


§829.  RIGHTS  OF  OWNER.  The  owner  of  land  in  fee 
has  the  right  to  the  surface  and  to  everything  permanently 
situated  beneath  or  above  it. 

History:     Enacted  March  21,  1872. 


§830.  BOUNDARIES  BY  WATER.  Except  where  the 
grant  under  which  the  land  is  held  indicates  a  different  in- 
tent, the  owner  of  the  upland,  when  it  borders  on  tide-wa- 
ter, takes  to  ordinary  high-water  mark;  when  it  borders  upon 
a  navigable  lake  or  stream,  where  there  is  no  tide,  the  owner 
takes  to  the  edge  of  the  lake  or  stream,  at  low-water  mark; 
when  it  borders  upon  any  other  water,  the  owner  takes  to 
the  middle  of  the  lake  or  stream. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  220;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  393,  held  unconsti- 
tutional, see  history,  §  4  ante. 


§831.  BOUNDARIES  BY  WAYS.  An  owner  of  land 
bounded  by  a  road  or  street  is  presumed  to  own  to  tlic  cen- 
ter of  the  way,  but  the  contrary  may  be  shown. 

History:     Enacted  March  21,  1872. 

431  .         ■       ■       . 


§§832-834  CIVIL  CODE.  [Div.II,Pt.Il. 

§832.  LATERAL  AND  SUBJACENT  SUPPORT.  Each 
coterminous  owner  is  entitled  to  the  lateral  and  subjacent 
support  which  his  land  receives  from  the  adjoining  land,  sub- 
ject to  the  right  of  the  owner  of  the  adjoining  land  to  make 
proper  and  usual  excavations  on  the  same  for  purposes  of 
construction,  on  using  ordinary  care  and  skill,  and  taking 
reasonable  precautions  to  svistain  the  land  of  the  other,  and 
giving  previous  reasonable  notice  to  the  other  of  his  inten- 
tion to  make  such  excavations. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  221.  This  section  as  originally  enacted 
was  taken  from  proposed  Civil  Code  of  New  York. — Sullivan  vs. 
Zeiner,  98  Cal.  346,  348,  33  Pac.  Rep.  209,  20  L,.  R.  A.  730. 

South  Dakota  Comp.  L,aw.s,  8  2784,  an  exact  copy  of  this  sec- 
tion.— See  Novotny  vs.   Danforth,   9  S.  D.   412.   69  N.  W.  Rep.   585. 

Utah  Comp.  Laws,  §  2784,  is  substantially  the  same  as  this 
section,  except  that  it  omits  the  words  "in  its  natural  condi- 
tion" and  also  the  words  "when  improved." — Ulrick  vs.  Dakota 
L.  &  T.  Co.,  2  S.  D.  285,  49  N.  W.  Rep.  1054. 

§833.  TREES  WHOSE  TRUNKS  ARE  WHOLLY  ON 
LAND  OF  ONE.  Trees  whose  trunks  stand  wholly  upon 
the  land  of  one  owner  belong  exclusively  to  him,  although 
their  roots  grow  into  the  land  of  another. 

History:     Enacted  March  21,  1872. 

§834.  LINE  TREES.  Trees  whose  trunks  stand  partly 
on  the  land  of  two  or  more  coterminous  owners,  belong  to 
them  in  common. 

History:     Enacted  March  21,  1872. 


432 


Tit.III.ch.IL]   DUTIES  OF  OWNERS— FENCES.  §§840-842 


CHAPTER  II. 

OBLIGATIONS  OF  OWNERS. 

§  840.  Duties   of   tenant   for   life. 

§  841.  Monuments  and  fences. 

§  842.  Owners   of  ditches,    flumes,    etc.     Liability   to   each   other. 

§  843.  Neglect  to  pay  proportion  of  expenses;  liability  in  action. 

§840.  DUTIES  OF  TENANT  FOR  LIFE.  The  owner 
of  a  life  estate  must  keep  the  buildings  and  fences  in  repair 
from  ordinary  waste,  and  must  pay  the  taxes  and  other  an- 
nual charges,  and  a  just  proportion  of  extraordinary  assess- 
ments benefiting  the  whole  inheritance. 

History:     Enacted  March  21,  1872. 

§841.  MONUMENTS  AND  FENCES.  Coterminous 
owners  are   mutually  bound  equally  to  maintain: 

1.  The  botmdaries  and  monuments  between  them; 

2.  The  fences  between  them,  unless  one  of  them  chooses 
to  let  his  land  lie  without  fencing;  in  which  case,  if  he  after- 
wards incloses  it,  he  must  refund  to  the  other  a  just  pro- 
portion of  the  value,  at  that  time,  of  any  division  fence 
made  by  the  latter. 

History:     Enacted  March  21,  1872. 
This  section   is  apparently  based  on   1  Rev.  St.  N.   Y.   350,   §  30. 
— See   Ryan   vs.   Rochester  &   S.   R.  Co.,    9   How.   Pr.    (N.   Y.)    453, 
455. 

As  to  lawful  fence  in  counties  named,  see  Act  1850,  as 
amended  by  Act  April  3,  1860  (Stats.  1860,  p.  141).  Gonzales  vs. 
Wasson,  51  Cal.  295,  297. 

§842.  OWNERS  OF  DITCHES,  FLUMES,  ETC.  LIA- 
BILITY TO  EACH  OTHER.  When  two  or  more  persons 
are   associated   by   agreement    in   the   use   of   a   ditch,    flume, 

433 


§843  CIVIL   CODE.  [Div.II,Pt.Il. 

pipe-line  or  other  conduit  for  the  conveyance  of  water,  or 
who  are  using  such  ditch,  flume,  pipe-line  or  other  conduit, 
or  any  part  thereof,  for  the  irrigation  of  land  or  for  any  oth- 
er lawful  purpose,  to  the  construction  of  which  they  or  their 
grantors  have  contributed,  he  is  liable  to  the  others  for  the 
reasonable  expenses  of  maintaining  and  repairing  the  same, 
and  of  distributing  such  water  in  proportion  to  the  share 
to  which  he  is  entitled  in  the  use  of  the  water. 

History:  Proposed  by  Code  Commission  and  enacted  March 
16,  1901,  Stats.  Amdts.  1900-1,  p.  393,  held  unconstitutional,  see 
history,  §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.   600. 

§843.  NEGLECT  TO  PAY  PROPORTION  OF  EX- 
PENSES; LIABILITY  IN  ACTION.  If  any  one  of  them 
neglects,  after  demand  in  writing,  to  pay  his  proportion  of 
such  expenses,  he  is  liable  therefor  in  an  action  for  contribu- 
tion, and  in  any  judgment  obtained  against  him  interest 
from  the  time  of  such  demand  must  be  included.  The  action 
authorized  by  this  section  must  be  brought  bj^  any  or  all  of 
the  parties  who  have  contributed  more  than  his  or  their 
just  proportion  of  such  expenses,  and  may  be  joint  or  sev- 
eral, and  therein  plaintiff  may  recover  as  costs,  reasonable 
counsel  fees,  to  be  fixed  by  the  court. 

History:  Proposed  by  Code  Commission  and  enacted  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  393.  held  unconstitutional, 
see  history,  §  4  ante;  re-enacted  March  21,  1905.  Stats,  and 
Amdts.   1905,  p.   600. 


434 


\ 

Tit. IV.]  USES  AND  TRUSTS.  §847 


TITLE  IV. 

USES  AND  TRUSTS. 

§  847.     What  uses  and  trusts  may  exist. 

§  848.  Right  to  possession  of  land  creates  legal  ownership 
[repealed]. 

§  S49.~  Certain  trusts  unaffected   [repealed]. 

§  850.  Trustees  of  estate  for  use  of  another  take  no  interest 
[repealed]. 

§  851.     Preceding  sections   qualified   [repealed]. 

§  852.      Trust  must  be  in  writing. 

§  853.  Transfer  to  one  for  money  paid  by  another.  [Trust  pre- 
sumed]. 

§  854.     Rights  of  creditors   [repealed]. 

§  855.  Section  eight  hundred  and  fifty-three  qualified  [re- 
pealed]. 

§  856.     Purchasers  protected. 

§  857.     For  what  purposes  express  trusts  may  be  created. 

§  858.     Vesting  of  mortgage  powers. 

§  859.     Profits  of  land  liable  to  creditors  in  certain  cases. 

§  860.     Exercise  of  vested  power. 

§  861.     Creation  of  certain  powers  not  prohibited   [repealed]. 

§  862.     Land,   etc.,   to   descend  to  persons   entitled   [repealed]. 

§  863.     Trustees   of   express   trusts   to   have  whole   estate. 

§  864.     Author  of  trust  may  devise,   etc. 

§  865.     Title  of  grantor  of  trust  property. 

§  866.     Interests   remaining  in  grantor  of  express   trust. 

§  867.     Restraining  disposition  of  trusts. 

§  868.     Powers  over  trust  of  party  interested   [repealed]. 

§  869.     Effect  of  omitting  trust  in  conveyance. 

§  870.     Certain  sales,  etc.,  by  trustees,  void. 

§  871.     When  estate  of  tru.stee  to  cease. 

§847.     WHAT     USES     AND     TRUSTS   MAY    EXIST. 

Uses   and  trusts  in  relation   to   real   property  are   those   only 
which  are  specified  in  this  title. 

History:     Enacted   March    21,    1872.      See   history   to   §  857   post. 

435 


§§848-853  CIVIL  code.  [Div.II,Pt.II. 

§848.  RIGHT  TO  POSSESSION  OF  LAND  CREATES 
LEGAL  OWNERSHIP   [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   221. 

§849.     CERTAIN    TRUSTS    UNAFFECTED    [repealed]. 

Hisitory:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.  1873-4,  p.   221. 

§850.  TRUSTEES  OF  ESTATE  FOR  USE  OF  AN- 
OTHER TAKE  NO  INTEREST    [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   221. 

§851.  PRECEDING  SECTIONS  QUALIFIED  [re- 
pealed]. ^ 

HLstory:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   221. 

§852.  TRUST  MUST  BE  IN  WRITING.  No  trust  in 
relation  to  real  property  is  valid  unless  created  or  declared: 

1.  By  a  written  instrument,  subscribed  by  the  trustee,  or 
by  his  agent   thereto  authorized  by  writing; 

2.  By  the  instrument  under  which  the  trustee  claims  the 
estate  affected;  or, 

3.  By  operation  of  law. 

Hi-story:     Enacted  March  21,  1872. 

§853.  TRANSFER  TO  ONE  FOR  MONEY  PAID  BY 
ANOTHER.  [TRUST  PRESUMED.]  When  a  transfer 
of  real  property  is  made  to  one  person,  and  the  considera- 
tion therefor  is  paid  by  or  for  another,  a  trust  is  presumed 
to  result  in  favor  of  the  person  by  or  for  whom  such  pay- 
ment is  made. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4.  p.   221. 

436 


Tit.IV.]  PURPOSES  OP  TRUST.  §§  854-857 

§854.     RIGHTS   OF   CREDITORS    [repealed]. 

Hi-story:      Enacted    March    21,    1S72;    repealed    March    30,    1S74, 
Code  Amdts.    1S73-4,  p.   221. 


§855.     SECTION    EIGHT   HUNDRED     AND     FIFTY- 
THREE    QUALIFIED    [repealed]. 

History:      Enacted    March    21,    1872;    repealed    March    30,    1874, 
Code  Amdts.   1873-4,  p.   221. 


§  856.  PURCHASERS  PROTECTED.  No  implied  or  re- 
sulting trust  can  prejudice  the  rights  of  a  purchaser  or  en- 
cumbrancer of  real  property  for  value  and  without  notice 
of  the   trust. 

History:     Enacted  March  21,  1872. 


§857.  FOR  WHAT  PURPOSES  EXPRESS  TRUSTS 
MAY  BE  CREATED.  Express  trusts  may  be  created  for 
any  of  the  following  purposes: 

1.  To  sell  and  convey  real  property  and  to  hold  or  rein- 
vest or  apply  or  dispose  of  the  proceeds  in  accordance  with 
the   instrument   creating  the  trust. 

2.  To  mortgage  or  lease  real  property  for  the  benefit  of 
annuitants,  or  devisees  or  legatees,  or  other  beneficiaries,  or 
for  the  purpose  of  satisfying  any  charge  thereon. 

3.  To  receive  the  rents  and  profits  of  real  property,  and 
pay  them  to,  or  apply  them  to  the  use  of  any  person,  whether 
ascertained  at  the  time  of  the  creation  of  the  trust  or  not, 
for  himself  or  for  his  family  during  the  life  of  such  person, 
or  for  any  shorter  term,  subject  to  the  rules  of  title  two  of 
division  two  of  part  one  of  this  code. 

4.  To  receive  the  rents  and  profits  of  real  property  and  to 
accumulate  the  same  for  the  purposes  and  within  the  limits 
prescribed  by  the  same  title;  or 

5.  To    convey,    partition,    divide,    distribute    or    allot    real 

437 


§§858,859  CIVIL  code.  [Div.II,Pt.II. 

property    in    accordance    with    the    instrument    creating    the 
trust,  subject  to  the  limitations  of  the  same  title. 

HLstory:  Enacted  March  21,  1872;  amended  March  30.  1874, 
Code  Amdts.  1S73-4,  p.  221;  May  30,  1913,  Stats,  and  Amdts. 
1913,  p.   438.     In  effect  August  10,  1913. 


§858.  VESTING  OF  MORTGAGE  POWERS.  Where 
a  power  to  sell  real  property  is  given  to  a  mortgagee,  or 
other  encumbrancer,  in  an  instrument  intended  to  secure  the 
payment  of  money,  the  power  is  to  be  deemed  a  part  of  the 
security,  and  vests  in  any  person  who,  by  assignment,  be- 
comes entitled  to  the  money  so  secured  to  be  paid,  and  may 
be  executed  by  him  whenever  the  assignment  is  duly  ack- 
nowledged and  recorded. 

HLstory:  Enacted  March  21,  1872;  original  provision  repealed 
and  above  provision  substituted  therefor  by  Act  March  30,  1874, 
Code  Amdts.   1S73-4,  p.   222. 

The  above  section  a  re-enactment  of  section  895  post  (re- 
pealed).— In  re  Estate  Fair,  132  Cal.  523,  557,  84  Am.  St.  Rep. 
70,   60  Pac.  Rep.  442,   64  Id.   1000. 


§859.  PROFITS  OF  LAND  LIABLE  TO  CREDITORS 
IN  CERTAIN  CASES.  Where  a  trust  is  created  to  receive 
the  rents  and  profits  of  real  property,  and  no  valid  direction 
for  accumulation  is  given,  the  surplus  of  such  rents  and 
profits,  beyond  the  sum  that  may  be  necessary  for  the  edu- 
cation and  support  of  the  person  for  whose  benefit  the  trust 
is  created,  is  liable  to  the  claims  of  the  creditors  of  such 
person,  in  the  same  manner  as  personal  property  which 
cannot   be   reached   by  execution. 

Hlstoo':  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  394,  held 
unconstitutional,  see  history,   §  4  ante. 

This  section  is  taken  from  1  N.  Y.  Rev.  Stats.  729,  §  57,  which 
has  received  construction  in  Kllroy  vs.  "Wood,  42  Hun  (N.  Y.) 
636. — See  Magner  vs.  Croolcs,  139  Cal.   640,   642,  73  Pac.  Rep.  585. 

438 


Tit.  I  v.]  VESTED  POWERS,  ETC.  §§860-864 

§860.  EXERCISE  OF  VESTED  POWER.  Where  a 
power  is  vested  in  several  persons,  all  must  unite  in  its  execu- 
tion; but,  in  case  any  one  or  more  of  them  is  dead,  the 
power  may  be  executed  by  the  survivor  or  survivors,  unless 
otherwise  prescribed  by  the  terms  of  the  power. 

History:  Enacted  March  21,  1872;  original  section  repealed 
and  above  provision  substituted  therefor  by  Act  Marcli  30,  1874, 
Code  Amdts.    1873-4,   p.    222. 

The  above  section  a  verbatim  re-enactment  of  section  90U 
post  (repealed). — In  re  Estate  Fair,  132  Cal.  523.  557,  84  Am.  St. 
Rep.   70,   60  Pac.  Rep.   442,   64   Id.  1000. 

§861.  CREATION  OF  CERTAIN  POWERS  NOT 
PROHIBITED    [repealed]. 

Hi-story:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   222. 

§862.  LAND,  ETC.,  TO  DESCEND  TO  PERSONS  EN- 
TITLED    [repealed]. 

History:  Enacted  March  21.  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.  222. 

§863.  TRUSTEES  OF  EXPRESS  TRUSTS  TO  HAVE 
WHOLE  ESTATE.  Except  as  hereinafter  otherwise  pro- 
vided, every  express  trust  in  real  property,  valid  as  such  in  its 
creation,  vests  the  whole  estate  in  the  trustees,  subject  only 
to  the  execution  of  the  trust.  The  beneficiaries  take  no  es- 
tate or  interest  in  the  property,  but  may  enforce  the  per- 
formance  of  the   trust. 

History:     Enacted  March  21,  1872. 


§864.     AUTHOR   OF  TRUST     MAY     DEVISE,     ETC. 

Notwithstanding  anything  contained  in  the  last  section,  the 
author  of  a  trust  may,  in  its  creation,  prescribe  to  whom  the 
real  property  to  which  the  trust  relates  shall  belong,  in  the 

439 


§§865-869  CIVIL  code.  [Div.II.Pt.II. 

event  of  the  failure  or  termination  of  the  trust,  and  may 
transfer  or  devise  such  property,  subject  to  the  execution  of 
the   trust. 

History:     Enacted  March  21,  1S72. 

§865.  TITLE  OF  GRANTOR  OF  TRUST  PROPER- 
TY. The  grantee  or  devisee  of  real  property  subject  to  a 
trust  acquires  a  legal  estate  in  the  property,  as  against  all 
persons  except  the  trustees  and  those  lawfully  claiming  un- 
der them. 

History:     Enacted  March  21,  1S72. 

§866.  INTERESTS  REMAINING  IN  GRANTOR  OF 
EXPRESS  TRUST.  Where  an  express  trust  is  created  in 
relation  to  real  property,  every  estate  not  embraced  in  the 
trust,  and  not  otherwise  disposed  of,  is  left  in  the  author  of 
the   trust  or   his  successors. 

History:     Enacted  March  21,  1S72. 

§867.     RESTRAINING  DISPOSITION     OF     TRUSTS. 

The  beneficiary  of  a  trust  for  the  receipt  of  the  rents  and 
profits  of  real  property,  or  for  the  payment  of  an  annuity 
out  of  such  rents  and  profits,  may  be  restrained  from  dispos- 
ing of  his  interest  in  such  trust,  during  his  life  or  for  a  term 
of  years,  by  the  instrument  creating  the  trust. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.   1873-4,  p.   223. 

§868.  POWERS  OVER  TRUST  OF  PARTY  INTER- 
ESTED   [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1S74, 
Code  Amdls.  1873-4,  p.   223. 

§869.  EFFECT  OF  OMITTING  TRUST  IN  CONVEY- 
ANCE. Where  an  express  trust  is  created  in  relation  to  real 
property,  but  is   not   contained  or   declared  in   the  grant  to 

440 


Tit. IV.]  RALES   BY  TRUSTEES.  §§870,871 

the  trustee,  or  in  an  instrument  signed  by  him,  and  recorded 
in  the  same  office  with  the  grant  to  the  trustee,  such  grant 
must  be  deemed  absolute  in  favor  of  purchasers  from  such 
trustee  without  notice,  and  for  a  valuable   consideration. 

Historj-:  Enacted  March  21,  1872;  amended  March  30.  1874, 
Code  Amdts.    1873-4,   p.    223. 

§870.  CERTAIN  SALES,  ETC.,  BY  TRUSTEES, 
VOID.  Where  a  trust  in  relation  to  real  property  is  ex- 
pressed in  the  instrument  creating  the  estate  every  transfer 
or  other  act  of  the  trustees,  in  contravention  of  the  trust,  is 
absolutely  void. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  394,  held 
unconstitutional,  see  history,   §  4  ante. 

§871.     WHEN  ESTATE  OF     TRUSTEE     TO     CEASE. 

When  the  purpose  for  which  an  express  trust  was  created 
ceases,  the  estate  of  the  trustee  also  ceases. 

History:     Enacted  March  21,  1872. 


441 


TITLE  V. 

POWERS 

[This  title,  embracing  sections  878  to  and  including  940  of 
the  original  code,  was  repealed  by  Act  A'larch  30,  1874,  Code 
Amdts.  1873-4,  p.  223.] 

1.  Purpose  of  title. — This  title  was  intended  to  limit  and 
restrict  the  power  of  the  owners  of  real  property. — In  re 
Estate  Fair,  132  Cal.  523,  557,  84  Am.  St.  Rep.  70,  60  Pac. 
Rep.  442,  64  Id.  1000. 

2.  Codes  authorize  creation  of  power. — Notwithstanding 
repeal  of  title  in  regard  to  powers,  "in  one  respect  the  cre- 
ation of  a  power  is  still  authorized  by  the  codes." — Sacra- 
mento Bank  vs.  Alcorn,  121  Cal.  379,  384,  53  Pac.  Rep.  813. 


442 


Tit. I.]  PERSONAL  PROPERTY.  §§946,947 


PART  III. 

PERSONAL  AND  MOVABLE  PROPERTY. 
Title   L     Personal    Property   in    General,   §§946-947. 

IL     Particular   Kinds   of   Personal   Property,  §§953-994. 


TITLE  L 

PERSONAL  PROPERTY  IN  GENERAL.   " 

§  94  6.     By   what   law    governed. 

§  947.      Future    interests    in    perislialile    property,    how    protected 
[repealed]. 

§946.  BY  WHAT  LAW  GOVERNED.  If  there  is  no 
law  to  the  contrary,  in  the  place  where  personal  property  is 
situated,  it  is  deemed  to  follow  the  person  of  its  owner,  and 
is  governed  by  the  law  of  his  domicile. 

History:  Enacted  March  21.  1S72;  repealed  March  30,  1874, 
Code  Amdts.  1873-4,  p.  223;  re-enacted  as  above  March  9,  1S76. 
Code  Amdts.  1875-6,  p.  78. 

§947.  FUTURE  INTERESTS  IN  PERISHABLE 
PROPERTY,  HOW  PROTECTED   [repealed]. 

History:  Enacted  March  21,  1S72;  repealed  March  ^0,  1874, 
Code  Amdts.   1873-4,  p.   223. 


443 


Tit.II.ch.J.]  KINDS  OF  PERSONALTY.  §§953,954 


TITLE  II. 

PARTICULAR  KINDS  OF  PERSONAL  PROPERTY 

Chapter  I.  Things  in  Action,  §§  953-955. 

II.  Shipping,  §§960-973. 

III.  Products  of  the  Mind,  §§980-985. 

IV.  Other    Kinds   of    Personal    Property,    §§991-995. 


CHAPTER  I. 

THINGS  IN  ACTION. 

§  953.     Things  in  action  defined. 
§  954.     Transfer  and   survivorship. 
§  955.     Assignment  of  wages. 

§953.  THINGS  IN  ACTION  DEFINED.  A  thing  in 
action  is  a  right  to  recover  money  or  other  personal  prop- 
erty by  a  judicial  proceeding. 

History:  Enacted  March  21,  1872;  amended  March  30.  1ST4, 
Code  Amdts.  1873-4,  p.   224. 

§954.  TRANSFER  AND  SURVIVORSHIP.  A  thing 
in  action,  arising  out  of  the  violation  of  a  right  of  property, 
or  out  of  an  obligation,  may  be  transferred  by  the  owner. 
Upon  the  death  of  the  owner  it  passes  to  his  personal  rep- 
resentatives, except  where,  in  the  cases  provided  in  the  Code 
of  Civil  Procedure,  it  passes  to  his  devisees  or  successor  in 
office. 

History:  Enacted  March  21,  1872.  See  Practice  Act  1851,  §  4, 
and   other  statutes   referred   to   in   brief  in  Gray  vs.   Garrison,   9 

445 


§955  CIVIL    CODE.  [Div.II.Pt.III. 

Cal.  325,  327;  Act  May  15,  1854,  §  4,  and  Act  May  7,  1855,  Ryan  vs. 
Maddux,  6  Cal.  247,  248;  Acts  1851,  1854,  1855,  and  1864,  referred 
to  in  More  vs.  Masslni,  32  Cal.   590,  593. 

South    Dakota   Comp.   Laws,   §  2877    is    identical. — Erickson    vs. 
Brookings  Co.,   3  S.  D.   434,  53  N.  W.  Rep.   857. 


§955.  ASSIGNMENT  OF  WAGES.  No  assignment  of, 
or  order  for,  wages  or  salary  shall  be  valid  unless  made  in 
writing  by  the  person  by  whom  the  said  wages  or  salary  are 
earned  and  no  assignment  of,  or  order  for,  wages  or  salary 
made  by  a  married  person  shall  be  valid  unless  the  written 
consent  of  the  husband  or  wife  of  the  person  making  such 
assignment  or  order  is  attached  to  such  assignment  or  order; 
and  no  assignment  or  order  for  wages  or  salary  of  a  minor 
shall  be  valid  unless  the  written  consent  of  a  parent  or  the 
guardian  of  such  minor  is  attached  to  such  order  or  assign- 
ment. No  assignment  of,  or  order  for,  wages  or  salary  shall 
be  valid  unless  at  the  time  of  the  making  thereof,  such  wages 
or  salary  have  been  earned,  except  for  the  necessities  of  life 
and  then  only  to  the  person  or  persons  furnishing  such  nec- 
essities of  life  directly  and  then  only  for  the  amount  needed 
to  furnish  such  necessities. 

[Power  of  attorney  revocable.]  Any  power  of  attorney 
to  assign  or  collect  wages  or  salary  shall  be  revocable  at 
any  time  by  the  maker  thereof. 

Hi-story:  Enacted  June  7,  1913,  Stats,  and  Amdts.  1913,  p.  537. 
lu  effect  August  10,   1913. 


446 


Tit.H.ch.TT.art.T.]         SHIP,  WHAT  IS  A.  §§960.961 

CHAPTER  II. 

SHIPPING 

Article  I.     General    Provisions,    §§960-966 

II.     Rules   of    Navigation,    §§970-973. 


ARTICLE  I. 

GENERAL  PROVISIONS. 

§  960.  Definition  of  a  ship. 

§  961.  Appurtenances  and  equipments. 

§  962.  Foreign  and  domestic  navigation. 

§  963.  Foreign   and   domestic   ships    distinguished. 

§  964.  Several   owners. 

§  965.  Owner  for  voyage. 

§  966.  Registry,  etc. 

§960.  DEFINITION  OF  A  SHIP.  The  term  "ship  or 
shipping,"  w^hen  used  in  this  code,  includes  steamboats,  sail- 
ing vessels,  -canal-boats,  barges,  and  every  structure  adapted 
to  be  navigated  from  place  to  place  for  the  transportation  of 
merchandise  or  persons. 

•tisTory:  Enacted  March  21,  1S72;  amended  March  30  1S7I, 
Code  Amdts.   1873-4,  p.  224. 

§961.     APPURTENANCES    AND    EQUIPMENTS.     All 

things,  belonging  to  the  owners,  which  are  on  board  a  ship, 
and  are  connected  with  its  proper  use,  for  the  objects  of  the 
voyage  and  adventure  in  which  the  ship  is  engaged,  are 
deemed  its  appurtenances. 

Hlotory:     Enacted  March  21,  1872. 

447 


§§962-966  CIVIL  code.  [Div.II.Pt.III. 

§962.     FOREIGN     AND     DOMESTIC     NAVIGATION. 

Ships  are  engaged  either  in  foreign  or  domestic  navigation, 
or  in  the  fisheries.  Ships  are  engaged  in  foreign  navigation 
when  passing  to  or  from  a  foreign  country;  and  in  domestic 
navigation,  when  passing  from  place  to  place  within  the 
United  States. 

History:     Enacted  March  21,  1872. 

§963.  FOREIGN  AND  DOMESTIC  SHIPS  DISTIN- 
GUISHED. A  ship  in  a  port  of  the  state  to  which  it  be- 
longs is  called  a  domestic  ship;  in  another  port  it  is  called 
a  foreign  ship. 

History:     Enacted  March  21,  1872. 

§964.  SEVERAL  OWNERS.-  If  a  ship  belongs  to  sev- 
eral persons,  not  partners,  and  they  differ  as  to  its  use  or 
repair,  the  controversy  may  be  determined  by  any  court  of 
competent  jurisdiction. 

History:     Enacted  March  21,  1872. 

§965.  OWNER  FOR  VOYAGE.  If  the  owner  of  a  ship 
commits  its  possession  and  navigation  to  another,  that  other, 
and  not  the  owner,  is  responsible  for  its  repairs  and  sup- 
plies. 

History:     Enacted  March  21,  1872. 

§966.  REGISTRY,  ETC.  The  registry,  enrolment,  and 
license  of  ships  are  regulated  by  acts  of  Congress. 

History:     Enacted  March  21,  1872. 


448 


Tit.II,ch.II.art.II.]     NAVIGATION— RULES  OF.  §970 


ARTICLE  II. 

RULES  OF   NAVIGATION. 

§  970.     Collisions: 

1.  Rules  as  lo  ships  meeting  each  other. 

2.  The  rule  for  sailing  vessels. 

3.  Rules   for  steamers  in   narrow  channels. 

4.  Same.      [Pass   on   starboard   side.] 

.5.   Rules  for  steam  vessels  on  different  courses. 

6.   Meeting  of  steamers. 
§  971.     Collision    from   breach   of   rules. 
§  972.      Breaches  of  such  rules  to  imply  wilful  default. 
§  973.     Loss,  how  apportioned. 

§970.  COLLISIONS.  In  the  case  of  ships  meeting,  the 
following  rules  must  be  observed,  in  addition  to  those  pre- 
scribed by  that  part  of  the  Political  Code  which  relates  to 
navigation: 

1.  Rules  as  to  ships  meeting  each  other.  Whenever  any 
ship,  whether  a  steamer  or  sailing  ship,  proceeding  in  one  di- 
rection, ineets  another  ship,  whether  a  steamer  or  sailing 
ship,  proceeding  in  another  direction,  so  that  if  both  ships 
were  to  continue  their  respective  courses  they  would  pass 
so  near  as  to  involve  the  risk  of  a  collision,  the  helms  of  both 
ships  must  be  put  to  port  so  as  to  pass  on  the  port  side  of 
each  other;  and  this  rule  applies  to  all  steamers  and  all  sail- 
ing ships,  whether  on  the  port  or  starboard  tack,  and  whether 
close-hauled  or  not,  except  where  the  circumstances  of  tlic 
case  are  such  as  to  render  a  departure  from  the  rule  neces- 
sary in  order  to  avoid  immediate  danger,  and  subject  also 
to  a  due  regard  to  the  dangers  of  navigation,  and,  as  regards 
sailing  ships  on  the  starboard  tack  close-hauled,  to  the  keep- 
ing such   ships   under  command; 

2.  Rules  for  sailing  vessels.  In  the  case  of  sailing  vessels, 
those    having   the    wind    fair    must   give   way    to    those   on    a 

15  449 


§971  .  CIVIL    CODE.  [Div.II.Pt.III. 

wind.  When  both  are  going  by  the  wind,  the  vessel  on  the 
starboard  tack  must  keep  her  wind,  and  the  one  on  the  lar- 
board tack  bear  up  strongly,  passing  each  other  on  the  lar- 
board hand.  When  both  vessels  have  the  wind  large  or 
abeam,  and  meet,  they  must  pass  each  other  in  the  same  way 
on  the  larboard  hand,  to  effect  which  two  last-mentioned 
objects  the  helm  must  be  put  to  port.  Steam  vessels  must 
be  regarded  as  vessels  navigating  with  a  fair  wind,  and 
should  give  way  to  sailing  vessels  on  a  wind  of  either  tack; 

3.  Rules  for  steamers  in  narrow  channels.  A  steamer  nav- 
igating a  narrow  channel  must,  whenever  it  is  safe  and  prac- 
ticable, keep  to  that  side  of  the  fairway  or  mid  channel 
which  lies  on  the  starboard  side  of  the  steamer; 

4.  Same.  [Pass  on  starboard  side.]  A  steamer  when 
passing  another  steamer  in  such  channel,  must  always  leave 
the  other  upon  the  larboard  side; 

5.  Rules  for  steam  vessels  on  different  courses.  When 
steamers  must  inevitably  or  necessarily  cross  so  near  that  by 
continuing  their  respective  courses,  there  would  be  a  risk  of 
collision,  each  vessel  must  put  her  helm  to  port,  so  as  al- 
ways to  pass  on  the  larboard  side  of  each  other; 

6.  Meeting  of  steamers.  The  rules  of  this  section  do  not 
apply  to  any  case  for  which  a  different  rule  is  provided  by 
the  regulations  for  the  government  of  pilots  of  steamers  ap- 
proaching each  other  within  the  sound  of  the  steam-whistit, 
or  by  the  regulations  concerning  lights  upon  steamers,  pre- 
scribed by  or  under  authority  of  the  laws  of  the  United 
States. 

Histiiry:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  394,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacled 
March    21,    1905,    Stats,    and    Amdts.    1905,    p.    600. 

§971.     COLLISION  FROM  BREACH  OF  RULES.    If  it 

appears  that  a  collision  was  occasioned  by  failure  to  observe 
any  rule  of  the  foregoing  section,  the  owner  of  the  ship  by 

450 


Tit.II,ch.II,art.lI.]      BREACH  OP  RULES— LOSS.        §§972,973 

which  such  rule  is  infringed  cannot  recover  compensation 
for  damages  sustained  by  the  ship  in  such  collision,  unless  it 
appears  that  the  circumstances  of  the  case  made  a  departure 
from    the   rule    necessarj'. 

History:     Enacted  March  21,  1S72. 

§972.  BREACHES  OF  SUCH  RULES  TO  IMPLY 
WILFUL  DEFAULT.  Damage  to  person  or  property 
arising  from  the  failure  of  a  ship  to  observe  any  rule  of  sec- 
tion nine  hundred  and  seventj^  must  be  deemed  to  have  b&en 
occasioned  by  the  wilful  default  of  the  person  in  charge  of 
the  deck  of  such  ship  at  the  time,  unless  it  appears  that  the 
circumstances  of  the  case  made  a  departure  from  the  rule 
necessary. 

History:     Enacted  March  21,  1872. 

§973.  LOSS,  HOW  APPORTIONED.  Losses  caused 
by  collision  are  to  be  borne  as  follows: 

1.  If  either  party  was  exclusively  in  fault  he  must  bear 
his  own  loss,  and  compensate  the  other  for  any  loss  he  has 
sustained; 

2.  If  neither  was  in  fault,  the  loss  must  be  borne  by  him 
on  whom   it  falls; 

3.  If  both  were  in  fault,  the  loss  is  to  be  equally  divided, 
unless  it  appears  that  there  was  a  great  disparity  in  fault, 
in  which  case  the  loss  must  be  equitably  apportioned; 

4.  If  it  cannot  be  ascertained  where  the  fault  lies,  the  loss 
must  be  equall}'  divided. 

History:     Enacted  March  21,  1872. 


451 


§§980-982  CIVIL  CODE.  [Div.II,Pt.IIl. 


CHAPTER  III. 

PRODUCTS  OP  THE  MIND. 

§  980.  How   far  the  .subject  of  ownership. 

§  981.  Joint  authorship. 

§  9S2.  Transfer. 

§  983.  Effect  of  publication. 

§  984.  Subsequent   inventor,   author,   etc. 

§  985.  Private  writings. 

§980.     HOW   FAR  THE  SUBJECT   OF   OWNERSHIP. 

The  author  of  any  product  of  the  mind,  whether  it  is  an 
invention,  or  a  composition  in  letters  or  art,  or  a  design, 
with  or  without  delineation,  or  other  graphical  representa- 
tion, has  an  exclusive  ownership  therein,  and  in  the  repre- 
sentation or  expression  thereof,  which  continues  so  long  as 
the  product  and  the  representations  or  expressions  thereof 
made  by  him  remain  in  his  possession. 

History:     Enacted  March  21,  1872. 

§  981.  JOINT  AUTHORSHIP.  Unless  otherwise  agreed, 
a  product  of  the  mind  in  the  production  of  which  several 
persons  are  jointly  concerned,  is  owned  by  them  as  fol- 
lows: 

1.  If  the  product  is  single,  in  equal  proportions; 

2.  If  it  is  not  single,  in  proportion  to  the  contribution  of 
each. 

History:     Enacted  March  21,  1872. 

§982.  TRANSFER.  The  owner  of  any  product  of  the 
mind,  or  of  any  representation  or  expression  thereof,  may 
transfer  his  property  in  the  same. 

History:     Enacted  March  21,  1872. 

452 


Tit.II.ch.III.]         EFFECT   OP   PUBLICATION.  §§983-985 

§983.  EFFECT  OF  PUBLICATION.  If  the  owner  of  a 
product  of  the  mind  intentionally  makes  it  public,  a  copy  or 
reproduction  may  be  made  public  by  any  person,  without 
responsibility  to  the  owner,  so  far  as  the  law  of  this  state 
is  concerned. 

History:     Enacted  March  21,  1872. 

§984.     SUBSEQUENT     INVENTOR,     AUTHOR,  ETC. 

If  the  owner  of  a  product  of  the  mind  does  not  make  it  pub- 
lic, any  other  person  subsequently  and  originally  produc- 
ing the  same  thing  has  the  same  right  therein  as  the  prior 
author,  which  is  exclusive  to  the  same  extent  against  all  per- 
sons except  the  prior  author,  or  those  claiming  under  him. 

History:     Enacted  March  21,  1S72. 

§  985.  PRIVATE  WRITINGS.  Letters  and  other  private 
communications  in  writing  belong  to  the  person  to  whom 
they  are  addressed  and  delivered;  but  they  cannot  be  pub- 
lished against  the  will  of  the  writer,  except  by  authority  of 
law. 

History:     Enacted  March  21,  187  2. 


453 


§§991-993  CIVIL  CODE.  [Div.II,Pt.III. 


CHAPTER  IV. 

OTHER  KINDS  OF  PERSONAL  PROPERTY. 

§  991.  Trade-marks  and  signs. 

§  992.  Good-will    of   business. 

§  993.  Good-will  and   name,   transfer   of. 

§  994.  Title  deeds. 

§  995.  "Tare"  on  baled  hops. 

§991.  TRADE-MARKS  AND  SIGNS.  One  who  pro- 
duces or  deals  in  a  particular  thing,  or  conducts  a  particular 
business,  may  appropriate  to  his  exclusive  use,  as  a  trade- 
mark, any  form,  symbol,  or  name  which  has  not  been  so  ap- 
propriated by  another,  to  designate  the  origin  or  ownership 
thereof;  but  he  cannot  exclusively  appropriate  any  designa- 
tion, or  part  of  a  designation,  which  relates  only  to  the  name, 
quality,  or  the  description  of  the  thing  or  business,  or  the 
place  where  the  thing  is  produced,  or  the  business  is  carried 
on. 

HLstiiry:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  224. 

See  Act  1863. — Derringer  vs.  Plate,  29  Cal.  292,  294,  87  Am. 
Dec.   170. 

§992.  GOOD-WILL  OF  BUSINESS.  The  good-will  of 
a  business  .is  the  expectation  of  continued  public  patronage, 
but  it  does  not  include  a  right  to  use  the  name  of  any  per- 
son from  whom  it  was  acquired. 

History:     Enacted  March  21,  1872. 

§993.     GOOD-WILL     AND     NAME,     TRANSFER  OF. 

The    good-will   of   a    business    is   propertj^    transferable   like 
any  other,  and  the  person  transferring  it  may  transfer  with 

454 


Tit. II, ch. IV.]  TITLE   DEEDS— "TARE."  §§994,995 

it   the  right  of  using  the   name  under   which  the   business   is 
conducted. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  395,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   21,  1905,  Stats,  and  Amdts.  1905,  p.   602. 

§994.  TITLE  DEEDS.  Instruments  essential  to  the  title 
of  real  property,  and  which  are  not  kept  in  a  public  office  as 
a  record,  pursuant  to  law,  belong  to  the  person  in  whom,  for 
the  time  being,  such  title  may  be  vested,  and  pass  with  the 
title. 

History:     Enacted  March  21,  1872. 

§995.  "TARE"  ON  BALED  HOPS.  There  shall  be  al- 
lowed on  baled  hops  a  tare  at  the  rate  of  two  per  centum  of 
the  weight  of  the  bale  for  the  cloth  and  other  material  used 
in  baling;  that  is,  the  tare  shall  be  at  the  rate  of  two  pounds 
per  hundred  on  the  weight  of  the  bale. 

History:  Enacted  March  21,  1907,  Stats,  and  Amdts.  1907,  p. 
845,  Kerr's  Stats,  and  Amdts.   1906-7,  p.   423. 


45S 


PART  IV. 

ACQUISITION   OF   PROPERTY 

Title  I     Modes  in  which  property  may  be  acquired,  §§  1000- 
1001. 
II.     Occupancy,    §§  1006-1007. 

III.  Accession,  §§  1013-1033. 

IV.  Transfer,  §§  1039-1231. 

V.  Homesteads,  §§  1237-1269c. 

VI.  Wills,  §§  1270-1377. 

VII.  Succession,   §§  1383-1408. 

VIII.  Water    Rights,    §§  1410-1422. 

IX.  Hydraulic  Mining,  §§  1424-1425. 

X.  Locating  Mining  Claims,  Tunnel  Rights,  Mill-sites, 
§§  1426-1426S. 


457 


Tit.I.]  ACQUISITION  OF   PROPERTY.  §§  IQOO,  1001 


TITLE   I. 

MODES  IN  WHICH  PROPERTY  MAY  BE  ACQUIRED 

§  1000.     Property,   how  acquired. 

§  1001.     Acquisition   of  property   by   exercise  of  eminent  domain. 

§  1000.  PROPERTY,  HOW  ACQUIRED.  Property  is 
acquired   by: 

1.  Occupancy; 

2.  Accession; 

3.  Transfer; 

4.  Will;  or, 

5.  Succession. 

History:     Enacted  March  21,  1872. 

§  1001.  ACQUISITION  OF  PROPERTY  BY  EXER- 
CISE OF  EMINENT  DOMAIN.  Any  person  may,  without 
further  legislative  action,  acquire  private  property  for  any 
use  specified  in  section  twelve  hundred  and  thirty-eight  of 
the  Code  of  Civil  Procedure  either  by  consent  of  the  owner 
or  by  proceedings  had  under  the  provisions  of  title  seven, 
part  three,  of  the  Code  of  Civil  Procedure;  and  any  person 
seeking  to  acquire  property  for  any  of  the  uses  mentioned 
in'such  title  is  "an  agent  of  the  state,"  or  a  "person  in  charge 
of  such  use,"  within  the  meaning  of  those  terms  as  used  in 
such  title.  This  section  shall  be  in  force  from  and  after 
the  fourth  day  of  April,  eighteen  hundred  and  seventy-two. 

History:     Enacted  March  21,  IS? 2. 


459 


§§1006,1007  CIVIL  CODE.  [Div.II,Pt.]V. 


TITLE  II. 

OCCUPANCY. 

§  1006.     Simple    occupancy. 
§  1007.      Prescription. 

§  1006.  SIMPLE  OCCUPANCY.  Occupancy  for  any  pe- 
riod confers  a  title  sufficient  against  all  except  the  state  and 
those  Avho  have  title  by  prescription,  accession,  transfer, 
will,  or  succession;  provided,  however,  that  the  title  con- 
ferred by  such  occupancy  shall  not  be  a  sufficient  interest  in 
real  property  to  entitle  the  occupant  or  his  pivies  to  com- 
mertce  or  maintain  an  action  to  quiet  title  under  the  provi- 
sions of  section  seven  hundred  thirty-eight  of  the  Code 
of  Civil  Procedure  of  this  state,  unless  such  occupancy  shall 
have  ripened  into  title  by  prescription. 

History:  Enacted  March  21,  1S72;  amended  May  29,  1915, 
Stats,  and  Amdts.   1915,  p.   93S.     In  effeot  August  8,  1915. 

§  1007.  PRESCRIPTION.  Occupancy  for  the  period  pre- 
scribed by  the  Code  of  Civil  Procedure,  as  sufficient  to  bar 
an  action  for  the  recovery  of  the  property  confers  a  title 
thereto,  denominated  a  title  by  prescription,  which  is  suf- 
ficient against  all. 

History:     Enacted  March  21,  1872.  * 


460 


Tit.III,ch.I.]  FIXTURES— ALLUVION.  §§1013,1014 


TITLE  III. 

ACCESSION. 

Chapter  I.     To  Real   Property,   §§  1013-1019. 

II.     To  Personal  Property,  §§  1025-1033. 


CHAPTER  I. 

ACCESSION   TO    REAL   PROPERTY. 

§  1013.  Fixtures. 

§  1014.  Alluvion. 

§  1015.  Sudden  removal  of  bank. 

§  1016.  Islands,  in  navigable  streams. 

§  1017.  [Same.]'     In  unnavigable  streams. 

§  1018.  Islands  formed  by  division  of  stream. 

§  1019.  Fixtures,  removal  of  by  tenant. 

§  1013.  FIXTURES.  When  a  person  affixes  his  property 
to  the  land  of  another,  v^^ithout  an  agreement  permitting  him 
to  remove  it,  the  thing  affixed,  except  as  provided  in  sec- 
tion ten  hundred  and  nineteen,  belongs  to  the  owner  of  the 
land,  unless  he  chooses  to  require  the  former  to  remove  it. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   224. 

§  1014.  ALLUVION.  Where,  from  natural  causes,  land 
forms  by  imperceptible  degrees  upon  the  bank  of  a  river  or 
stream,  navigable  or  not  navigable,  either  by  accumulation 
of  material  or  by  the  recession  of  the  stream,  such  land  be- 
longs to  the  owner  of  the  bank,  subject  to  an}-  existing  right 
of  way  over   the  bank. 

History:  Enacted  Mai'ch  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  395,  held 
unconstitutional,  see  history,   §  4  ante. 

461 


§§1015-1019  CIVIL  CODE.  [Div.II.Pt.lV. 

§  1015.  SUDDEN  REMOVAL  OF  BANK.  If  a  river  or 
stream,  navigable  or  not  navigable,  carries  away,  by  sudden 
violence,  a  considerable  and  distinguishable  part  of  a  bank, 
and  bears  it  to  the  opposite  bank,  or  to  another  part  of  the 
same  bank,  the  owner  of  the  part  carried  away  may  reclaim 
it  within  a  year  after  the  owner  of  the  land  to  which  it  has 
been  united  takes  possession  thereof. 

History:     Enacted  March  21.  1S72. 

§  1016.  ISLANDS,  IN  NAVIGABLE  STREAMS.  Is- 
lands and  accumulations  of  land,  forined  in  the  beds  of 
streams  which  are  navigable,  belong  to  the  state,  if  there  is 
no  title  or  prescription  to  the  contrary. 

History:     Enacted  March  21,  18  72. 

§  1017.     [SAME.]        IN      UNNAVIGABLE      STREAMS. 

An  island,  or  an  accumulation  of  land,  formed  in  a  stream 
which  is  not  navigable,  belongs  to  the  owner  of  the  shore 
on  that  side  where  the  island  or  accumulation  is  formed;  or, 
if  not  formed  on  one  side  only,  to  the  owners  of  the  shore 
on  the  two  sides,  divided  by  an  imaginary  line  drawn  through 
the  middle  of  the  river. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commi.s- 
sion,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  395,  held 
unconstitutional,   see  history,   §  4   ante. 

§  1018.  ISLANDS  FORMED  BY  DIVISION  OF 
STREAM.  If  a  stream,  navigable  or  not  navigable,  in  form- 
ing itself  a  new  arm,  divides  itself  and  surrounds  land  be- 
longing to  the  owner  of  the  shore,  and  thereby  forms  an  is- 
land, the  island  belongs  to  such  owner. 

History:     Enacted  March  21,  1872. 

§  1019.     FIXTURES,  REMOVAL  OF  BY  TENANT.     A 

tenant  may  remove  from  the  demised  premises,  an}-  time  dur- 

462 


Tit.III.ch.II.]  ACCESSION  BY  UNITING.  §§  1025,  1026 

ing  the  continuance  of  his  term,  anything  affixed  thereto  for 
purposes  of  trade,  manufacture,  ornament,  or  domestic  use, 
if  the  removal  can  be  effected  without  injury  to  the  premises, 
unless  the  thing  has,  by  the  manner  in  which  it*  is  affixed, 
become  an  integral  part  of  the  premises. 

History:  Original  section,  relating  to  abandonment  of  bed  of 
stream,  enacted  March  21,  1872,  was  repealed  and  the  above  pro- 
vision substituted  therefor  by  Act  March  30,  1874,  Code  Amdts. 
1873-4,  p.   225.  • 


CHAPTER  II. 

ACCESSION   TO   PERSONAL  PROPERTY. 

§  1025.  Accession  by  uniting  several  things. 

§  1026.  Principal  part,  what. 

§  1027.  Same.      [The   more  valuable   of  bulky.] 

§  1028.  Uniting  materials  and   workmanship. 

§  1029.  Inseparable   materials. 

§  1030.  Materials  of  several  owners. 

§  1031.  Wilful   trespassers. 

§.1032.  Owner   may  elect  between   the   thing   and   its  value. 

§  1033.  Wrong-doer   liable   in  damages. 

§  1025.  ACCESSION  BY  UNITING  SEVERAL 
THINGS.  When  things  belonging  to  difterent  owners  have 
been  united  so  as  to  form  a  single  thing,  and  cannot  be  sep- 
arated w'ithout  injury,  the  whole  belongs  to  the  owner  of 
the  thing  which  forms  the  principal  part;  who  must,  how- 
ever, reimburse  the  value  of  the  residue  to  the  other  owner, 
or  surrender  the  whole  to  him. 

History:     Enacted  March  21,  1872. 

§  1026.  PRINCIPAL  PART,  WHAT.  That  part  is  to  be 
deemed  the  principal  to  which  the  other  has  been  united 
only   for   the   use,    ornament,   or   completion   of   the    former, 

463 


§§1027-1030  CIVIL  CODE.  [Div.II,Pt.IV. 

unless  the  latter  is  the  more  valuable,  and  has  been  unitea 
without  the  knowledge  of  its  owner,  who  may,  in  the  latter 
case,  require  it  to  be  separated  and  returned  to  him,  although 
some  injufy  should  result  to  the  thing  to  which  it  has  been 
united. 

History:     Enacted  March  21,  1872. 

I 

§  1027.  SAME.  [THE  MORE  VALUABLE  OR 
BULKY.]  If  neither  can  be  considered  the  principal,  with- 
in the  rule  prescribed  by  the  last  section,  the  more  valuable, 
or,  if  the  values  are  nearly  equal,  the  more  considerable  in 
bulk,  is  to  be  deemed  the  principal  part. 

History:     Enacted  March  21,  1872. 

§  1028.  UNITING  MATERIALS  AND  WORKMAN- 
SHIP. If  one  makes  a  thing  from  materials  belonging  to 
another,  the  latter  may  claim  the  thing  on  reimbursing  the 
value  of  the  workmanship,  unless  the  value  of  the  work- 
manship exceeds  the  value  of  the  materials,  in  which  case  the 
thing  belongs  to  the  maker,  on  reimbursing  the  value  of  the 
materials. 

History:     Enacted  March  21,  1872. 

§1029.  INSEPARABLE  MATERIALS.  Where  one  has 
made  use  of  materials  which  in  part  belong  to  him  and  in 
part  to  another,  in  order  to  form  a  thing  of  a  new  descrip- 
tion, without  having  destroyed  any  of  the  materials,  but  in 
such  a  way  that  they  cannot  be  separated  without  incon- 
venience, the  thing  foriped  is  common  to  both  proprietors; 
in  proportion,  as  respects  the  one,  of  the  materials  belong- 
ing to  him,  and  as  respects  the  other,  of  the  materials  be- 
longing to  him  and  the  price  of  his  workmanship. 

History:     Enacted  March  21,  1872. 

§  1030.  MATERIALS  OF  SEVERAL  OWNERS.  When 
a  thing  has  been  formed  by  the  admixture  of  several  mate- 

464 


Tit.III.ch.lI.]         .      TRESPASS— ELECTION.  §§1031-1033 

rials  of  different  owners,  and  neither  can  be  considered  the 
principal  substance,  an  owner  without  whose  consent  the 
admixture  was  made  may  require  a  separation,  if  the  mate- 
rials can  be  separated  without  inconvenience.  If  they  can- 
not be  thus  separated,  the  owners  acquire  the  thing  in  com- 
mon, in  proportion  to  the  quantity,  quality,  and  value  of 
their  materials;  but  if  the  materials  of  one  were  far  superior 
to  those  of  the  others,  both  in  quantity  and  value,  he  may 
claim  the  thing  on  reimbursing  to  the  others  the  value  of 
their  materials. 

History:     Enacted  March  21,  1ST2.  i 

§  1031.  WILFUL  TRESPASSERS.  The  foregoing  sec- 
tions of  this  article  are  not  applicable  to  cases  in  which  one 
wilfully  uses  the  materials  of  another  without  his  consent; 
but,  in  such  cases,  the  product  belongs  to  the  owner  of  the 
material,  if  its  identity   can  be  traced. 

HLstory:     Enacted  March  21,  1S72. 

§  1032.  OWNER  MAY  ELECT  BETWEEN  THE 
THING  AND  ITS  VALUE.  In  all  cases  where  one  whose 
material  has  been  used  without  his  knowledge,  in  order  to 
form  a  product  of  a  different  description,  can  claim  an  in- 
terest in  such  product,  he  has  an  option  to  demand  either 
restitution  of  his  material  in  kind,  in  the  same  quantity, 
weight,  measure,  and  quality,  or  the  value  thereof;  or  where 
he  is  entitled  to  the  product,  the  value  thereof  in  place  of 
the   product. 

Hi.story:     Enacted  March  23,  liS72. 

§1033.     WRONG-DOER  LIABLE  IN  DAMAGES.     One 

who  wrongful!}'  employ's  materials  belonging  to  anotlier  is 
liable  to  him  in  damages,  as  well  as  under  the  foregoing  pro- 
visions of  this  chapter. 

History:     Enacted  March  21,  1872. 

465  . 


§1039  CIVIL    CODE.  [Div.II,Pt.IV. 


TITLE  IV. 

TRANSFER 

The  obligations  of  the  parties  to  a  transfer  for  considera- 
tion, or  to  a  contract  of  hiring,  are  regulated  by  the  titles 
on  sales,  on  exchange,  and  on  hiring.  Transfers  in  trust 
for  the  benefit  of  creditors  are  regulated  by  the  part  on  debt- 
or and  creditor. — Commissioners'  note. 


Chapter  I.     Transfer  in  General,  §§  1039-1085. 

II.     Transfer  of  Real  Property,  §§1091-1115. 
III.     Transfer   of  Personal    Property,   §§  1135-1153. 
IV.     Recording  Transfers  of  Real  Property,  §§  1158- 

1218. 
V.     Unlawful    Transfers,    §§  1227-1231. 


CHAPTER  I. 

TRANSFERS   IN   GENERAL 

Article  I.  Definition  of  Transfer,  §§  1039-1040 

II.  What  May  Be  Transferred,  §§1044-1047. 

III.  Mode  of  Transfer,  §§  1052-1060. 

IV.  Interpretation  of  Grants,  §§  1066-1072. 
V.  Effect  of  Transfer,    §§  1083-1085. 


466 


Tit.IV.ch.I.arts.1,11.]        TRANSFERS.  §1039-1045 


ARTICLE  I. 

DEFINITION   OF   TRANSFER. 

§  1039.     Transfer,  what. 

§  1040.      Voluntary    transfer. 

§  1039.     TRANSFER,  WHAT.     Transfer  is  an   act  of  the 

parties,  or  of  the  law,  by  which  the  title  to  property  is  con- 
veyed from  one  living  person  to  another. 

History:     Enacted  March  21,  1872. 

§  1040.  VOLUNTARY  TRANSFER.  A  voluntary  trans- 
fer is  an  executed  contract,  subject  to  all  rules  of  law  con- 
cerning contracts   in   general;   except  that  a  consideration   is 

not  necessary  to  its  validity. 
I 
History:     Enacted  March  21,  1872. 


ARTICLE    II. 

WHAT  MAY  BE  TRANSFERRED. 

§  1044.  "What   may   be    transferred. 

§  1045.  Possibility. 

§  1046.  Right  of  re-entry  can  be  transferred. 

§  1047.  Owner  ousted  of  possession  may  transfer. 

§  1044.  WHAT  MAY  BE  TRANSFERRED.  Property 
of  any  kind  maj'  be  transferred,  except  as  otherwise  provid- 
ed by  this  article. 

Hi.story:     Enacted  March  21,  1872. 

§  1045.  POSSIBILITY.  A  mere  possibility,  not  coupled 
with  an  interest,  cannot  be  transferred. 

History:     Enacted  March  21,  1872. 

467 


§§1046-1053  CIVIL  CODE.  [Div.II.Pt.lV. 

§  1046.  RIGHT  OF  RE-ENTRY  CAN  BE  TRANS- 
FERRED. A  right  of  re-entry,  or  of  repossession  for  breacli 
of  condition  subsequent,  can  be  transferred. 

History:     Enacted  March  21,  1872. 

§  1047.  OWNER  OUSTED  OF  POSSESSION  MAY 
TRANSFER.  Any  person  claiming  title  to  real  property  in 
the  adverse  possession  of  another  may  transfer  it  with  the 
same  effect  as  if  in  actual  possession. 

History:     Enacted  March  21,  1S72. 


ARTICLE  III. 

MODE  OF  TRANSFER. 

§  1052.  T\  hen   oral. 

§  1053.  Grant,  what. 

§  1054.  Delivery  necessary. 

§  1055.  Date. 

§  1056.  Delivery  to   grantee  is  necessarily  absolute. 

§  1057.  Delivery   in   escrow. 

§  1058.  Surrendering   or   canceling   grant   does   not   reconvey. 

§  1059.  Constructive  delivery. 

§  1060.  Gratuitous    grants    take    effect    immediately;    exception 
[repealed]. 

§  1052.  WHEN  ORAL.  A  transfer  may  be  made  with- 
out writing,  in  every  case  in  which  a  writing  is  not  express- 
ly required  by  statute. 

History:     Enacted  March  21,  1872. 

§  1053.  GRANT,  WHAT.  A  transfer  in  writing  is  called 
a  grant,  or  convej^ance,  or  bill  of  sale.  The  term  "grant," 
in  this  and  the  next  two  articles,  includes  all  these  instru- 
ments, unless  it  is  specially  applied  to  real  property. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   225.  ^ 

468 


Tit.IV,ch.I,art.TIT.l      DELIVERY— ESCROW.  §§  1054-1059 

§  1054.  DELIVERY  NECESSARY.  A  grant  takes  ef- 
fect, so  as  to  vest  the  interest  intended  to  be  transferred, 
only  upon  its  delivery  by  the  grantor. 

History:     Enacted  March  21,  1872. 

§  1055.  DATE.  A  grant  duly  executed  is  presumed  to 
have  been  delivered  at  its  date. 

History:     Enacted  March  21,  1ST2. 

§  1056.  DELIVERY  TO  GRANTEE  IS  NECESSAR- 
ILY ABSOLUTE.  A  grant  cannot  be  delivered  to  the 
grantee  conditionally.  Delivery  to  him,  or  to  his  agent  as 
such,  is  necessarily  absolute,  and  the  instrument  takes  ef- 
fect thereupon,  discharged  of  any  condition  on  which  the 
delivery  was  made. 

Hi.story:     Enacted  March  21,  1872. 

§  1057.  DELIVERY  IN  ESCROW.  A  grant  may  be  de- 
posited by  the  grantor  with  a  third  person,  to  be  deliveret. 
on  performance  of  a  condition,  and,  on  delivery  by  the  de- 
positary, it  will  take  efifect.  While  in  possession  of  the 
third  person,  and  subject  to  condition,  it  is  called  an  escrow. 

Hi^sto^y:     Enacted  March  21,  1872. 

§  1058.  SURRENDERING  OR  CANCELING  GRANT 
DOES  NOT  RECONVEY.  Redelivering  a  grant  of  real 
property  to  the  grantor,  or  canceling  it,  does  not  operate  to 
retransfer  the  title. 

History:     Enacted  Marcli  21,  1872. 

§  1059.  CONSTRUCTIVE  DELIVERY.  Though  a 
grant  be  not  actually  delivere<l  into  the  possession  of  the 
grantee,  it  is  yet  to  be  deemed  constructively  delivered  in  the 
following  cases: 

L  Where  the   instrument  is,  by  the  agrcemeni  of  the  par- 

469 


§§1060-1067  CIVIL  CODE.  [Div.II,Pt.IV. 

ties  at  the  time  of  execution,  understood  to  be  delivered,  and 
under  such  circumstances  that  the  grantee  is  entitled  to  im- 
mediate  delivery;    or, 

2.  Where  it   is   delivered  to  a  stranger   for  the  benefit  of 
the   grantee,   and  his  assent  is  shown,  or  may  be  presumed. 

Hi.story:     Enacted  March  21,  1S72. 

§  1060.     GRATUITOUS   GRANTS  TAKE  EFFECT  IM- 
MEDIATELY; EXCEPTION    [repealed]. 

HLstory:      Enacted   March    21,    1872;    repealed   March    30,    1874, 
Code  Amdts.    1873-4,   p.    225. 


ARTICLE  IV. 

INTERPRETATION  OF  GRANTS. 

I  1066.  Grants,  how  interpreted. 

§  1067.  Limitations,   how   controlled. 

§  lUGS.  Recitals,  when  resorted  to. 

§  10G9.  Interpretation  against  grantor. 

§  1070.  Irreconcilable  provisions. 

§  1071.  Meaning  of   "heirs"   and   "issue,"   in   certain   remainders. 

§  1072.  Words  of  inheritance  unnecessary. 

§  1066.  GRANTS,  HOW  INTERPRETED.  Grants  are 
to  be  interpreted  in  like  manner  with  contracts  in  general, 
except  so  far  as  is  otherwise  provided  in  this  article. 

History:     Enacted  March  21,  1S72. 

§  1067.  LIMITATIONS,  HOW  CONTROLLED.  A 
clear  and  distinct  limitation  in  a  grant  is  not  controlled  by 
other  words  less  clear  and  distinct. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  395,  held 
unconstitutional,  see  history,  §  4  ante. 

470 


Tit.IV,ch.I,art.IV.]   RECITALS— "HEIRS."  §§  1068-1072 

§1068..    RECITALS,     WHEN     RESORTED  TO.     If  the 

operative  words  of  a  grant  are  doubtful,  recourse  maj'  be  had 
to  its  recitals  to  assist  the  construction. 

History:     Enacted  March  21.  1872. 

§  1069.     INTERPRETATION  AGAINST  GRANTOR.    A 

grant  is  to  be  interpreted  in  faVor  of  the  grantee,  except  that 
a  reservation  in  any  grant,  and  ever}-  grant  by  a  public  of- 
ficer or  body,  as  such,  to  a  private  party,  is  to  be  interpre- 
ted in  favor  of  the  grantor. 

History:     Enacted  March  21,  1872. 

§  1070.  IRRECONCILABLE  PROVISIONS.  If  sev- 
eral parts  of  a  grant  are  absolutely  irreconcilable,  the  former 
part  prevails. 

History:     Enacted  March  21,  1872. 

§  1071.  MEANING  OF  "HEIRS"  AND  "ISSUE"  IN 
CERTAIN  REMAINDERS.  Where  a  future  interest  is 
limited  by  a  grant  to  take  effect  on  the  death  of  any  person 
without  heirs,  or  heirs  of  his  body,  or  without  issue,  or  in 
equivalent  words,  such  words  must  be  taken  to  mean  suc- 
cessors, or  issue  living  at  the  death  of  the  person  named 
as  ancestor. 

History:     Enacted  March   21,   1S72,  founded  upon  §  2,  Act  1855, 

Stats.   1855,  p.   171. 

§  1072.     WORDS  OF  INHERITANCE  UNNECESSARY. 

Words  of  inheritance  or  succession  are  not  requisite  to  trans- 
fer a  fee  in  real  property. 

History:  Enacted  March  21.  1872,  founded  upon  §  :i.  Act  1S55, 
Stats.   1S55,  p.   171. 


47] 


§§1083-1085  CIVIL  CODE.  [Div.II,Pt.IV. 


ARTICLE  V. 

EFFECT  OF  TRANSFER. 

§  10S3.     What  title   passes. 

§  10S4.      Incidents. 

§  1085.     Grant  may  inure  to  benefit  of  stranger. 

§  1083.  WHAT  TITLE  PASSES.  A  transfer  vests  in 
the  transferee  all  the  actual  title  to  the  thing  transferred 
which  the  transferrer  then  has,  unless  a  different  intention 
is  expressed   or  is   necessarily  implied. 

Hi.story:     Enacted  March  21,  1872. 

§  1084.  INCIDENTS.  The  transfer  of  a  thing  transfers 
also  all  its  incidents,  unless  expressly  excepted;  but  the  trans- 
fer of  an  incident  to  a  thing  does  not  transfer  the  thing  itself. 

History:     Enacted  March  21,  1872. 

§  1085.  GRANT  MAY  INURE  TO  BENEFIT  OF 
STRANGER.  A  present  interest,  and  the  benefit  of  a  con- 
dition or  covenant  respecting  property,  may  be  taken  by  any 
natural  person  under  a  grant,  although  not  named  a  party 
thereto. 

History:     Enacted  March  21,  1872. 


472 


Tit.IV,ch.II,art.I.]  TRANSFER— MODE  OF.  §§1091,1092 


CHAPTER  II. 

TRANSFER  OF  REAL  PROPERTY. 

Article  I.     Mode  of  Transfer,  §§  1091-1096. 
II.     Effect   of  Transfer,   §§1104-1115. 


ARTICLE  I. 

MODE    OF    TRANSFER. 

§  1091.     Requisites   for  transfer  of  certain   estates. 

§  1092.      Form  of  grant. 

§  1093.     Grant  by  married  woman,  how  acknowledged. 

§  1094.  Power  of  attorney  of  married  woman,  liow  acknowl- 
edged. . 

§  109.T.      Attorney   in   fact,  how   must  execute   for  principal. 

§  109fi.  Conveyance  of  real  estate  wlien  name  of  person  has 
been  changed. 

§  1091.  REQUISITES  FOR  TRANSFER  OF  CERTAIN 
ESTATES.  An  estate  in  real  property,  other  than  an  estate 
at  will  or  for  a  term  not  exceeding  one  year,  can  be  trans- 
ferred only  by  operation  of  law,  or  by  an  instrument  in  writ- 
ing, subscribed  by  the  party  disposing  of  the  same,  or  by  his 
agent    thereunto   authorized    by   writing. 

History:     Enacted  March  21,  1.S72. 

§  1092.  FORM  OF  GRANT.  A  grant  of  an  estate  in  real 
property  may  be  made  in   substance  as  follows: 

"I,  A  B,  grant  to  C  D  all  that  real  property  situated  in 
(insert  name  of  cotinty)  County,  state  of  California,  bounded 
(or  described)  as  follows:  (Here  insert  description,  or  if 
the   land  sought  to  be  conveyed   has  a   descriptive   name,   it 

473 


§§  1093-1096  CIVIL  CODE.  [Div.II.Pt.IV. 

may  be  described  by  the  name,  as  for  instance,  'The  Norris 
Ranch'). 

"Witness  my  hand  this  (insert  day)  day  of  (insert  month), 
18...  "A.  B." 

History:     Enacted  March  21,  1872. 

§  1093.  GRANT  BY  MARRIED  WOMAN,  HOW  AC- 
KNOWLEDGED. A  grant  or  conveyance  of  real  property 
made  by  a  married  woman  may  be  made,  executed,  and  ac- 
knowledged in  the  same  manner  and  has  the  same  efifect  as 
if  she  were  unmarried. 

History:  Enacted  March  21,  1872;  amended  March  14,  1895, 
Stats,  and  Amdts.  1895,  p.  53. 

§  1094.  POWER  OF  ATTORNEY  OF  MARRIED  WO- 
MAN, HOW  ACKNOWLEDGED.  A  married  woman  may 
make,  execute,  and  revoke  powers  of  attorney  for  the  sale, 
conveyance,'  or  encumbrance  of  her  real  or  personal  estate, 
which  shall  have  the  same  efifect  as  if  she  were  unmarried, 
and  may  be  acknowledged  in  the  same  manner  as  a  grant  of 
real  property. 

History:  Enacted  March  21,  1872,  founded  upon  §  1,  Act  April 
3,  1863,  Stats.  1863,  p.  165;  amended  March  9,  1895,  Stats,  and 
Amdts.   1895,  p.   39. 

§  1095.  ATTORNEY  IN  FACT,  HOW  MUST  EXE- 
CUTE FOR  PRINCIPAL.  When  an  attorney  in  fact  exe- 
cutes an  instrument  transferring  an  estate  in  real  property, 
he  must  subscribe  the  name  of  his  principal  to  it,  and  his 
own  name  as  attorney  in  fact. 

History;     Enacted  March  21,  1872. 

§  1096.  CONVEYANCE  OF  REAL  ESTATE  WHEN 
NAME  OF  PERSON  HAS  BEEN  CHANGED.  Any  per- 
son in  whom  the  title  of  real  estate  is  vested,  who  shall  after- 
wards, from  any  cause,  have  his  or  her  name  changed,  must, 

474 


Tit.IV,ch.II,art.II.]   EFFECT  OF  TRANSFER.         §1104 

in  any  conveyance  of  said  real  estate   so   held,  set  forth   the 
name  in  which  he  or  she  derived  title  to  said  real  estate. 

History:  Enacted,  on  recommendation  of  Code  Commission, 
Act  March  IG,  1901,  Stats,  and  Amdts.  1900-1,  p.  396.  held  un- 
constitutional, see  history,  §  4  ante;  re-enacted  March  21,  1905, 
Stats,   and  Amdts.   1905,  p.   602. 

A  codification  of  §  1,  Act  March  11,  1874,  Stats.  1873-4,  p.  345. 


ARTICLE  II. 

EFFECT  OF  TRANSFER. 

§  1104.  What  easements  pass  with  property. 

§  1105.  When  fee  simple  title  is  presumed  to  pass. 

§  1106.  Subsequently  acquired  title  passes  by  operation  of  law. 

§  1107.  Grant,    how    far    conclusive    on    purchaser. 

§  1108.  Conveyances  by  owner  for  life  or  for  years. 

§  1109.  Grant  made  on  condition  subsequent. 

§  1110.  Grants  on  condition,  when  absolute. 

§  1111.  Grant  of  rents,   reversions,   and  remainders. 

§  1112.  Boundary  by  highway,  what  passes. 

§  1113.  Implied  covenants. 

§  1114.  What  the  term  "encumbrances"  embraces. 

§  1115.  Lineal   and  collateral  warranties  abolished. 

§  1104.  WHAT  EASEMENTS  PASS  WITH  PROPER- 
TY. A  transfer  of  real  property  passes  all  easements  at- 
tached thereto,  and  creates  in  favor  thereof  an  easement  to 
use  other  real  property  of  the  person  whose  estate  is  trans- 
ferred in  the  same  manner  and  to  the  same  extent  as  such 
property  was  obviously  and  permanently  used  by  the  person 
whose  estate  is  transferred,  for  the  benefit  thereof,  at  the 
time  when  the  transfer  was  agreed  upon  or  completed. 

History:     Enacted  March  21,  1872. 

475 


§§1105-1109  CIVIL   CODE.  [Div.II,Pt.IV. 

§1105.  WHEN  FEE  SIMPLE  TITLE  IS  PRESUMED 
TO  PASS.  A  fee  simple  title  is  presumed  to  be  intended  to 
pass  by  a  grant  of  real  property,  unless  it  appears  from  the 
grant  that  a  lesser  estate  was  intended. 

History:     Enacted  March  21,  1872. 

§1106.  SUBSEQUENTLY  ACQUIRED  TITLE  PASS- 
ES BY  OPERATION  OF  LAW.  Where  a  person  purports 
by  proper  instrument  to  grant  real  property  in  fee  simple, 
and  subsequently  acquires  any  title,  or  claim  of  title  there- 
to, the  same  passes  by  operation  of  law  to  the  grantee,  or 
his  successors. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  396,  held 
unconstitutional,  see  history,  §  4  ante. 

§1107.  GRANT,  HOW  FAR  CONCLUSIVE  ON  PUR- 
CHASER. Every  grant  of  an  estate  in  real  property  is  con- 
clusive against  the  grantor,  also  against  every  one  subse- 
quently claiming  under  him,  except  a  purchaser  or  encum- 
brancer who  in  good  faith  and  for  a  valuable  consideration 
acquires  a  title  or  lien  by  an  instrument  that  is  first  duly  re- 
corded. 

History:      Enacted  March   21,   1872. 

§1108.  CONVEYANCES  BY  OWNER  FOR  LIFE  OR 
FOR  YEARS.  A  grant  made  by  the  owner  of  an  estate  for 
life  or  years,  purporting  to  transfer  a  greater  estate  than  he 
could  lawfully  transfer,  does  not  work  a  forfeiture  of  his 
estate,  but  passes  to  the  grantee  all  the  estate  which  the 
grantor  could  lawfully  transfer. 

History:      Enacted  March   21,   1872. 

§  1109.  GRANT  MADE  ON  CONDITION  SUBSE- 
QUENT.     Where    a    grant    is    made    upon    condition    subse- 

476 


Tit.lV,ch.JI,art.n.]      GRANTS  ON  CONDITION.  §§1110-1113 

quent,  and  is  sulisequently  defeated  by  the  iiou-pcrformance 
of  the  condition,  the  person  otherwise  entitled  to  hold  under 
the  grant  must  reconvey  the  property  to  the  grantor  or  his 
successors,  by  grant,  duly  acknowledged   for  record. 

History!      Enacted  March   21,   1S72. 


§1110.  GRANTS  ON  CONDITION,  WHEN  ABSO- 
LUTE. An  instrument  purporting  to  be  a  grant  of  real 
property,  to  take  effect  upon  condition  precedent,  passes  the 
estate    upon    the    performance    of    the    condition. 

History:  Enacted  March  21,  1872;  founded  upon  §  6,  Act  1855, 
Code  Amdts.   1873.-4,  p.   225. 

§1111.  GRANT  OF  RENTS,  REVERSIONS,  AND  RE- 
MAINDERS. Grants  of  rents  or  of  reversions  or  of  re- 
mainders are  good  and  effectual  without  attornments  of  the 
tenants;  but  no  tenant  who,  before  notice  of  the  grant,  shall 
have  paid  rent  to  the  grantor,  must  suffer  any  damage 
thereby. 

History:  Enacted  March  21.  1872;  founded  upon  §  G,  Act  1855, 
Stats.  1855,  p.  171. 

§  1112.     BOUNDARY  BY  HIGHWAY,  WHAT  PASSES. 

A  transfer  of  land,  bounded  l)y  a  higlnva3',  passes  llie  title 
of  the  person  whose  estate  is  transferred  to  the  soil  of  the 
highway  in  front  to  the  center  thereof,  unless  a  different  in- 
tent appears   from   tlie  grant. 

History:  Enacted  March  21,  1872;  amended  March  .30,  1874, 
Code  Amdts.   1873-4,  p.  225. 

§1113.     IMPLIED   COVENANTS.     From   the   use  of  the 

word  "grant"  in  any  conveyance  by  which  an  estate  of  in- 
heritance or  fee  simple  is  to  be  passed,  the  following  cov- 
enants, and  none  other,  on  the  part  of  the  grantor  for  him- 

477 


§§1114,1115  CIVIL  CODE.  [Div.ILPt.IV. 

self  and  his  heirs  to  the  grantee,  his  heirs,  and  assigns,  are 
implied,  unless  restrained  by  express  terms  contained  in  such 
conveyance: 

1.  That  previous  to  the  time  of  the  execution  of  such  con- 
veyance, the  grantor  has  not  conveyed  the  same  estate,  or 
any  right,  title,  or  interest  therein,  to  any  person  other  than 
the    grantee; 

2.  That  such  estate  is  at  the  time  of  the  execution  of  such 
conveyance  free  from  encumbrances  done,  made,  or  suflfered 
by   the   grantor,   or  any  person   claiming  under  him. 

Such  covenants  may  be  sued  upon  in  the  same  manner  as 
if  they  had  been  expressly  inserted  in  the  conveyance. 

History:  Enacted  March  21,  1S72,  founded  upon  §  9,  Act  1855, 
Stats.  1855,  p.  171. 

§  1114.  WHAT  THE  TERM  "ENCUMBRANCES"  EM- 
BRACES. The  term  "encumbrances"  includes  taxes,  assess- 
ments, and  all  liens  upon  real  property. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  226. 

§1115.  LINEAL  AND  COLLATERAL  WARRANTIES 
ABOLISHED.  Lineal  and  collateral  warranties,  with  all 
their  incidents,  are  abolished;  but  the  heirs  and  devisees  of 
every  person  who  has  made  any  covenant  or  agreement  in 
reference  to  the  title  of,  in,  or  to  any  real  property,  are  an- 
swerable upon  such  covenant  or  agreement  to  the  extent  of 
the  land  descended  or  devised  to  them,  in  the  cases  and  in 
the   manner  prescribed  by  law. 

HLstory:  Enacted  March  21,  1872,  founded  upon  §  8,  Act  1855 
Stats.   1855,  p.  171. 


478 


Tit.IV,ch.III.art.I.]TRANSFER  OF   PERSONALTY.  §§  II35,  1136 


CHAPTER  III. 

TRANSFER  OF  PERSONAL  PROPERTY. 

Article  I.     Mode   of  Transfer,   §§1135,   1136. 

II.     What   Operates  as   a  Transfer,   §§1140-1142. 
III.     Gifts,    §§  1146-1153. 


ARTICLE  I. 

MODE  OF  TRANSFER. 

§  1135.     When  must  be  in  writing. 
§  1136.     Transfer  by  sale,  etc. 

§  1135.  WHEN  MUST  BE  IN  WRITING.  An  interest 
in  a  ship,  or  in  an  existing  trust,  can  be  transferred  only  by 
operation  of  law,  or  by  a  written  instrument,  subscribed  by 
the  person  making  the  transfer,  or  by  his  agent. 

History:     Enacted  March  21,  1872. 

§1136.  TRANSFER  BY  SALE,  ETC.  The  mode  of 
transferring  other  personal  property  by  sale  is  regulated  by 
the   title  on  that  subject,  in  division   third  of  this  code. 

History:     Enacted  March  21,  1S72. 


479 


§§1140-1142  CIVIL  CODE.  [Div.II.Pt.IV. 


ARTICLE  II. 

WHAT  OPERATES  AS  A  TRANSFER. 

§  1140.      Transfer   of   title   under  sale. 

S  1141.     Transfer    of    title    under    executory    agreement    for    sale. 

§  1142.     When  buyer  acquires  better  title  than  seller  has. 

§  1140.     TRANSFER    OF    TITLE    UNDER    SALE.     The 

title  to  personal  property,  sold  or  exchanged,  passes  to  the 
buyer  whenever  the  parties  agree  upon  a  present  transfer, 
and  the  thing  itself  is  identified,  whether  it  is  separated  from 
other  things  or  not. 

HKstory:      Enacted  March   21,   1872. 

§  1141.  TRANSFER  OF  TITLE  UNDER  EXECUTORY 
AGREEMENT  FOR  SALE.  Title  is  transferred  by  an  ex- 
ecutory agreement  for  the  sale  or  exchange  of  personal  prop- 
erty only  when  the  buyer  has  accepted  the  thing,  or  when  the 
seller  has  completed  it,  prepared  it  for  delivery,  and  offered 
it  to  the  buyer,  with  intent  to  transfer  the  title  thereto,  in 
the  manner  prescribed  by  the  chapter  upon  offer  of  per- 
formance. 

History:      Enacted  March   21,   1872. 

§1142.  WHEN  BUYER  ACQUIRES  BETTER  TITLE 
THAN  SELLER  HAS.  Where  the  possession  of  personal 
property,  together  with  a  power  to  dispose  thereof,  is  trans- 
ferred by  its  owner  to  another  person,  an  executed  sale  by 
the  latter,  while  in  possession,  to  a  buyer  in  good  faith  and 
in  the  ordinary  course  of  business,  for  value,  transfers  to 
such  buyer  the  title  of  the  former  owner,  though  he  may  be 
entitled  to  rescind,  and  does  rescind,  the  transfer  made  by 
him. 

History:      Enacted  March   21,   1872. 

480 


Tit.IV,ch.III,art.III.]    GIFTS— HOW  MADE.  §§1146-1149 


ARTICLE  III. 

GJPTS. 

§  1146.  Gifts   defined. 

§  1147.  Gift,    how   made. 

§  1148.  Gift  not  revocable. 

§  1149.  Gift  in  view  of  death,  what. 

§  1150.  When  gift  presumed  to  be  in  view  of  death. 

§  1151.  Revocation   of  gift  in  view  of  death. 

§  1152.  Effect  of  will  upon   gift. 

§  1153.  When   treated  as  legacy. 

§1146.  GIFTS  DEFINED.  A  gift  is  a  transfer  of  per- 
sonal property,  made  voluntaril}',  and  without  consideration. 

History:     Enacted  March  21,  1872. 

§  1147.  GIFT,  HOW  MADE.  A  verbal  gift  is  not  valid, 
unless  the  means  of  obtaining  possession  and  control  of  the 
thing  are  given,  nor,  if  it  is  capable  of  delivery,  unless  there 
is  an  actual  or  symbolical  delivery  of  the  thing  to  the  donee. 

History:     Enacted  March  21,  1872. 

§  1148.  GIFT  NOT  REVOCABLE.  A  gift,  other  than 
a  gift  in  view  of  death,  cannot  be  revoked  by  the  giver. 

History:     Enacted  March  21,  1872. 

§  1149.  GIFT  IN  VIEW  OF  DEATH,  WHAT.  A  gift 
in  view  of  death  is  one  which  is  made  in  contemplation, 
fear,  or  peril  of  death,  and  with  intent  that  it  shall  take  ef- 
fect only  in  case  of  tlie   death  of  the  giver. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion,  Act  March   16,    1901,   Stats,  and  Amdts.   1900-1,  p.    396,  held 

unconstitutional,  see  history,   §  4  ante. 

"  481 


§§1150-1153  CIVIL    CODE.  [Div.lI.Pt.lV. 

§1150.  WHEN  GIFT  PRESUMED  TO  BE  IN  VIEW 
OF  DEATH.  A  gift  made  during  the  last  illness  of  the 
giver,  or  under  circumstances  which  would  naturally  impress 
him  with  an  expectation  of  speedy  death,  is  presumed  to  be 
a  gift   in   view  of  death. 

History:     Enacted  March   21,   1S72. 

§  1151.  REVOCATION  OF  GIFT  IN  VIEW  OF 
DEATH.  A  gift  in  view  of  death  may  be  revoked  by  the 
giver  at  any  time,  and  is  revoked  by  his  recovery  from  the 
illness,  or  escape  from  the  peril,  under  the  presence  of  which 
it  was  made,  or  by  the  occurrence  of  any  event  which  would 
operate  as  a  revocation  of  a  will  made  at  the  same  time,  but 
when  the  gift  has  been  delivered  to  the  donee,  the  rights  of 
a  bona  fide  purchaser  from  the  donee  before  the  revocation, 
shall  not  be  affected  by  the  revocation. 

History:  Enacted  March  21,  1872;  amended  March  ."0,  1874, 
Code  Amdts.   1873-4,  p.   226. 

§  1152.  EFFECT  OF  WILL  UPON  GIFT.  A  gift  in  view 
of  death  is  not  affected  by  a  previous  will;  nor  by  a  subse- 
quent will,  unless  it  expresses  an  intention  to  revoke  the  gift. 

History:     Enacted  March   21,   1872. 

§  1153.  WHEN  TREATED  AS  LEGACY.  A  gift  in  view 
of  death  must  be  treated  as  a  legacy,  so  far  as  relates  only 
to   the  creditors  of  the  giver. 

Hi.story:     Enacted  March   21,   1S72. 


482 


Tit.IV,ch.IV,art.I.]         ACKNOWLEDGMENT.  §§1158,1159 


CHAPTER  IV. 

RECORDING  TRANSFERS. 

Article  I.     What   May   Be   Recorded,  §§1158-1165. 
II.     Mode   of  Recording,   §§1169-1173. 
HI.     Proof     and     Acknowledgments     of     Instruments, 

§§1180-1207. 
IV.     Effect    of    Recording,    or    of    the    Want    Thereof, 
§§  1213-1218. 


ARTICLE  I. 

WHAT   MAY   BE    RECORDED. 

§  1158.     Wliat  may  be  recorded. 

§  1159.  Judgments  may  "be  recorded  without  acknowledgment. 
[Location  of  mining  claim.] 

§  1160.  Letters  patent  may  be  recorded  witliout  acknowledg- 
ment. 

§  1161.     Instruments   must  be  acknowledged,   except,   etc. 

§  1162.     Same.      [Certified   instruments   recorded,  when.] 

■§  1163.  Certificate  of  residence  filed  with  recorder,  sliowing 
where  service  of  summons  may  be  made. 

§  1164.     Transfer   in   trust,   etc. 

§  1165.     Recorder's  fees  to  be  indorsed. 

§1158.  WHAT  MAY  BE  RECORDED.  .\ny  instrument 
or  judgment  affecting  the  title  to  or  possession  of  real  prop- 
eity   may  be    recorded  under   this  chapter. 

History:      I'^nacted   March    -M,    1872. 

§1159.  JUDGMENTS  MAY  BE  RECORDED  WITH- 
OUT ACKNOWLEDGMENT.  [LOCATION  OF  MIN- 
ING  CLAIM.]      Judgments  affecting   tlie   title    to   i>r   posses- 

483 


§1160  CIVIL    CODE.  [Div.II.Pt.IV. 

sion  of  real  property,  authenticated  by  the  certificate  of  the 
clerk  of  the  court  in  which  such  judgments  were  rendered 
(and  notices  of  location  of  mining  claims),  may  be  recorded 
without  acknowledgment,  certificate  of  acknowledgment,  or 
further  proof. 

[Work  upon  mining  claims.]  The  record  of  all  notices  of 
location  of  mining  claims  heretofore  made  in  the  proper  of- 
fice without  acknowledgment,  or  certificate  of  acknowledg- 
ment, or  other  proof,  shall  have  the  same  force  and  effect  for 
all  purposes  as  if  the  same  had  been  duly  acknowledged,  or 
proved  and  certified  as  required  by  law.  Affidavits  showing 
work  or  posting  of  notices  upon  mining  claims  may  also  be 
recorded  in  the  recorder's  office  of  the  county  where  such 
mining  claims  are  situated. 

History:  Enacted  March  21,  1872;  amended  March  9,  1S87, 
Stats,  and  Amdts.   1897,  pp.   97,   98.     In  effect  March  9,  1897. 


§  1160.  LETTERS  PATENT  MAY  BE  RECORDED 
WITHOUT  ACKNOWLEDGMENT.  Letters  patent  from 
the  United  States,  or  from  the  state  of  California,  executed 
and  authenticated  pursuant  to  existing  law,  may  be  recorded 
without  acknowledgment  or  further  proof,  and  where  letters 
patent  have  been  lost,  or  are  beyond  the  control  of  any  party 
deraigning  title  therefrom,  or  for  any  reason  they  remain  un- 
recorded, any  person  claiming  title  thereunder  may  cause  a 
transcript  of  the  copy  of  such  letters  patent  kept  by  the  gov- 
ernment issuing  the  same,  duly  certified  by  the  officer  or 
individual  having  lawful  custody  of  such  copy,  to  be  re- 
corded in  lieu  of  the  original;  and  such  recorded  copy  shall 
have,  prima  facie,  the  same  force  and  effect  as  the  original, 
for  title  or  for  evidence,  until  said  original  letters  patent  be 
recorded. 

History:  Enacted  March  21,  1872;  amended  April  1,  1878,  Code 
Amdts.   1S77-S,  p.   86. 

484 


Tit.IV.ch.IV.art.I.]  ackxowledgmknt.  §§1161-1163 

§  1161.  INSTRUMENTS  MUST  BE  ACKNOWL- 
EDGED, EXCEPT,  ETC.  Before  an  instrument  can  be 
recorded,  unless  it  belongs  to  the  class  provided  for  in  either 
section  eleven  hundred  and  fifty-nine,  eleven  hundred  and 
sixty,  twelve  hundred  and  two,  or  twelve  hundred  and  three, 
its  execution  must  be  acknowledged  by  the  person  executing 
it,  or  if  executed  by  a  corporation,  by  its  president  or  secre- 
tary, or  other  person  executing  the  same  on  behalf  of  the 
corporation,  or  proved  by  a  subscribing  witness,  or  as  pro- 
vided in  sections  eleven  hundred  and  ninety-eight  and  eleven 
hundred  and  ninety-nine,  and  the  acknowledgment  or  proot 
certified  in  the  manner  prescribed  bj^  article  three  of  this 
chapter. 

Histdry:  Enacted  March  21,  1S7-2;  amended  March  30,  1871, 
Code  Amdts.  1S73-4,  p.  226;  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  396,  held  unconstitutional,  see 
history,  §  4  ante;  amendment  re-enacted  March  21,  1905,  Stats, 
and  Amdts.   1905,  p.   602. 

§1162.  SAME.  [CERTIFIED  INSTRUMENTS  RE- 
CORDED, WHEN.]  An  instrument  proved  and  certified 
pursuant  to  sections  eleven  hundred  and  ninety-eight  and 
eleven  hundred  and  ninety-nine  may  be  recorded  in  the 
proper  office  if  the  original  is  at  the  same  time  deposited 
therein  to  remam  for  public  inspection,  but  not  otherwise. 

History:     Enacted  March  21,  1S72. 

§1163.  CERTIFICATE  OF  RESIDENCE  FILED 
WITH  RECORDER  SHOWING  WHERE  SERVICE  OF- 
SUMMONS  MAY  BE  MADE.  Any  person,  firm,  or  cor- 
poration, may  record  in  the  ofiice  of  the  county  recorder  of 
any  county  in  the  state  of  California  a  certificate  setting 
forth  the  name  of  said  person,  firm,  or  corporation,  and  the 
place  of  residence  of  said  person,  firm,  or  corporation,  and 
the  place  where  service  of  summons  may  be  made  upon  said 
person,   firm,   or   corporation.     The    said   certificate    must   be 

485 


§§1164,1165  CIVIL  CODE.  [Div.II,Pt.IV. 

verified  by  the  oalh  of  the  person,  or  of  a  member  of  the 
firm,  or  officer  of  the  corporation  making  the  same,  and  may 
be  recorded  without  acknowledgment.  Such  person,  firm  or 
corporation  may  upon  a  change  of  place  of  residence  file 
affidavit  as  herein  provided  and  such  last  affidavit  filed  shall 
be  the  place  designated  as  the  place  where  service  of  sum- 
mons  may  be   made   as  herein   provided. 

The  fee  of  the  recorder  for  recording  said  certificate  shall 
be  fifty  cents;  and  the  recorder  shall  keep  in  his  office  an 
index  entitled  "Index  to  Certificates  of  Residence,"  in  which 
must  be  entered  the  name  of  the  person,  firm,  or  corporation 
in   whose   behalf  said  certificate-  was   filed. 

History:  Original  section,  providing  that  instruments  enacted 
under  power  of  attorney  should  not  be  recorded  until  the  power 
of  attorney  was  filed,  was  repealed  March  30,  1873-4,  p.  226. 
The  above  section  is  a  new  provision  added,  under  old  section 
number,  March   18,  190.5,  Stats,   and  Amdts.   1905,  pp.   139,  140. 

§  1164.  TRANSFER  IN  TRUST,  ETC.  Transfers  of 
property  in  trust  for  the  benefit  of  creditors,  and  transfers 
or  liens  on  property  by  way  of  mortgage,  are  required  to 
be  recorded  in  the  cases  specified  in  the  titles  on  the  special 
relation  of  debtor  and  creditor,  and  the  chapter  on  mort- 
gages, respectively. 

History:     Enacted  March   21,   1872. 

§  1165.     RECORDER'S     FEES     TO     BE     INDORSED. 

The  recorder  must,  in  all  cases,  indorse  the  amount  of  his 
fee    for   recordation   on    the   instrument   recorded. 

History:     Enacted  March   11,   1874.  Code  Amdts.   1873-4,  p.   275. 


486 


Tit.TV,ch.-lV,art.lI.]       RECORDING— MODE  OF.        §§1160-1173 


ARTICLE  II. 

MODE  OF  RECORDING. 

§  1169.  In  what  office. 

§  1170.  instrument,  when   deemed  recorded. 

§  1171.  Books  of  record. 

§  1172.  Duties  of  recorder. 

§  1173.  Transfer  of  vessels. 

§  1169.  IN  WHAT  OFFICE.  Instruments  entitled  to  be 
recorded  must  be  recorded  by  the  county  recorder  of  the 
county  in  which  the  real  property  affected  thereby  is  sit- 
uated. 

History:     Enacted  March   21,   1872. 

§  1170.  INSTRUMENT,  WHEN  DEEMED  RECORD- 
ED. An  instrument  is  deemed  to  be  recorded  when,  being 
duly  acknowledged  or  proved  and  certified,  it  is  deposited  in 
tlie  recorder's  office,  with  the  proper  officer,  for  record. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.   1S73-4,  p.  227. 

§  1171.  BOOKS  OF  RECORD.  Grants,  absolute  in 
terms,  are  to  ])e  recorded  in  one  set  of  books,  and  mortgages 
in   another. 

History:     Enacted  March  21,  1872. 

§  1172.  DUTIES  OF  RECORDER.  The  duties  of  county 
recorders,  in  respect  to  recording  instruments,  are  prescril)ed 
by   the    Political    Code. 

Hi.story:      Enacted  March   21,   1S72. 

§  1173.  TRANSFER  OF  VESSELS.  The  mode  of  re- 
cording transfers  of  ships  registered  under  the  laws  of  the 
United  States  is  regulated  by  acts  of  Congress. 

History:     Enacted  March  21,  1S72.  • 

487 


§1180  CIVIL    CODE.  [Div.II,Pt.IV, 


ARTICLE  III. 

PROOF  AND  ACKNOWLEDGMENT  OP  INSTRUMENTS. 

§  IISO.  By  whom  acknowledgments  may  be  taken  in  this  slate. 

§  1181.  Same. 

§"1182.  By  whom  taken  without  the  state. 

§  1183.  By  whom  taken  without  the  United   States. 

§  1184.  Deputy  can  take  acknowledgment. 

§  1185.  Requisites  for  acknowledgments. 

§  1186.  Acknowledgment  by  married  women   [repealed]. 

§  1187.  Conveyance   by   married  woman.     Acknowledgment. 

§  1188.  [Same.]     Certificate. 

§  1189.  General  form  of  certificate.      [Outside  of  state.] 

§  1190.  Form   of   acknowledgment  by   corporation. 

§  1191.  Form    of    certificate    of    acknowledgment     by     married 

women    [repealed]. 

§  1192.  Form   of  certificate   of   acknowledgment   by   attorney    in 

fact. 

§  1193.  Officers  must  affix  their  signatures. 

§  1194.  Certificate  of  authority  of  justices  in  certain  cases. 

§  1195.  Proof  of  execution,  how  made. 

§  1196.  Witness  must  be  personally  known  to  officer. 

§  1197.  Witness  must  prove,  what. 

§  1198.  Handwriting   may    be    proved,    when. 

§  IIG'S.  Evidence  of  handwriting  must  prove,  what. 

§  1200.  Certificate  of  proof. 

§  1201.  Officers  authorized  to  do  certain  things. 

§  1202.  Instrument   improperly    certified,   how    corrected. 

§  1203.  Judgment  proving  instrument. 

$  1204.  Effect  of  judgment  in   such  action. 

§  1205.  Conveyances    heretofore   made    to    be    goverjied    by    tlien 

existing  laws. 

§  1206.  Recording,    and    as    evidence,    to    be    governed    by    then 

existing  laws. 

§  1207.  Validating    defectively    executed    instruments.       Record 

imparts  notice.     Certified  copies. 

§1180.  BY  WHOM  ACKNOWLEDGMENTS  MAY  BE 
TAKEN  IN  THIS  STATE.  The  proof  or  acknowledgment 
of  an  instrument  may  be  made  at  any  place  within  this  state 


Tit.IV,ch.IV,art.III.]    acknowledgment.  §§  ngi^  1182 

before  a  justice  or  clerk  of  the  superior  court,  or  judge  of  a 
superior    court. 

History:  Enacted  March  21,  1872;  amended  April  3,  ISSO,  Code 
Amdts.   1880    (C.   C.  pt.),  p.  2. 

§  1181.  SAME.  The  proof  or  acknowledgment  of  an  in- 
strument may  be  made  in  this  state,  within  the  city,  county, 
city  and  county,  township  or  district  for  which  the  officer 
was  elected,  or  appointed,  before  either: 

1.  A  clerk  of  a  court  of  record; 

2.  A  county  recorder; 

3.  A  court  commissioner; 

4.  A  notary  public; 

5.  A  justice  of  the  peace. 

History:  .  Enacted  March  21,  1872;  amended  April  3,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  p.  2;  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  214;  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  396,  held  unconstitutional,  see  his- 
tory, §  4  ante;  amendment  re-enacted  March  21,  1905.  Stats,  and 
Amdts.  1905,  p.  603;  March  21,  1911,  Stats,  and  Amdts.  1911,  p. 
429. 

§  1182.     BY  WHOM  TAKEN  WITHOUT  THE  STATE. 

The  proof  or  acknowledgment  of  an  instrument  may  be  made 
without  this  state,  but  within  the  United  States,  and  within 
the  jurisdiction  of  the  officer,  before  either: 

1.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  the 
United  States;  or, 

2.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  any 
state;  or, 

3.  A  commissioner  appointed  by  the  governor  of  this  state 
for  that  purpose;  or, 

4.  A  notary  public;  or, 

5.  Any  other  officer  of  the  state  where  the  acknowledgment 
is  made  authorized  by  its  law  to  take  such  proof  or  acknowl- 
edgment. 

History:     Enacted  March  21,  1872. 

489 


§§1183-1185  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1183.  BY  WHOM  TAKEN  WITHOUT  THE  UNITED 
STATES.  The  proof  or  acknowledgment  of  an  instrument 
may  be  made  without  the  United  States,  before  either: 

1.  A  minister,  commissioner,  or  charge  d'affaires  of  the 
United  States,  resident  and  accredited  in  the  country  where 
the  proof  or  acknowledgment  is  made;  or, 

2.  A  consul,  vice-consul,  or  consular  agent  of  the  United 
States,  resident  in  the  country  where  the  proof  or  acknowl- 
edgment is  made;  or, 

3.  A  judge  of  a  court  of  record  of  the  country  where  the 
proof  or  acknowledgment  is  made;  or, 

4.  Commissioners  appointed  for  such  purposes  by  the  gov- 
ernor  of   the   state,   pursuant   to   special   statutes;   or, 

5.  A   notary   public. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  227. 


§1184.     DEPUTY   CAN  TAKE  ACKNOWLEDGMENT. 

When  any  of  the  officers  mentioned  in  the  four  preceding 
sections  arc  authorized  by  law  to  appoint  a  deputy,  the  ac- 
knowledgment or  proof  may  be  taken  by  such  deputy,  in  the 
name  of  his  principal. 

History:     Enacted  March  21,  1872. 


§1185.     REQUISITES     FOR     ACKNOWLEDGMENTS. 

Tlie  acknowledgment  of  an  instrument  must  not  be  taken, 
unless  the  oflicer  taking  it  knows  or  has  satisfactory  evi- 
dence, on  tiie  oath  or  affirmation  of  a  credible  witness,  that 
the  person  making  sucli  acknowledgment  is  the  individual 
who  is  described  in  and  who  executed  the  instrument;  or, 
if  executed  by  a  corporation,  that  the  person  making  such 
acknowledgment  is  the  president  or  secretary  of  such  cor- 
poration, or  other  person  who  executed  it  on  its  behalf. 

490 


Tit.IV.ch.IV.art.III.]      married  WOMAN.  §§1186-1189 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  39fi,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enai'ted 
March   21,   1905,   Stats,   and  Amdts.    1905,  p.  603. 

§1186.  ACKNOWLEDGMENT  BY  MARRIED  WO- 
MEN   [repealed]. 

History:  Enacted  March  21^  1872;  repealed  March  19,  1891, 
Stats,  and  Amdts.  1891,  p.  137. 

§1187.  CONVEYANCE  BY  MARRIED  WOMAN.  AC- 
KNOWLEDGMENT. A  conveyance  by  a  married  woman 
has  the  same  effect  as  if  she  were  unmarried,  and  may  l)e 
acknowledged    in    the    same    manner. 

History:  Enacted  March  21,  1872;  amended  March  19,  1891, 
Stats,   and  Amdts.    1891,  p.   137. 

§  1188.  [SAME.]  CERTIFICATE.  An  officer  taking 
the  acknowledgment  of  an  in.strumcnt  mtist  indorse  thereon 
or  attach  thereto  a  certificate  substantially  in  the  forms  here- 
inafter   prescribed. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   227. 

§1189.  GENERAL  FORM  OF  CERTIFICATE.  [OUT- 
SIDE OF  STATE.]  The  certificate  of  acknowledgment,  un- 
less it  is  otherwise  in  this  article  provided,  must  be  substan- 
tially   in   the    following    form:      "State    of    County    of 

,   ss.     On  this    day  of in   the  year    

before  me  (here  insert  name  and  ciuality  of  the  officer),  per- 
sonally appeared    known  to  me   (or  proved  to  me  on 

the  oath  of  )  to  be  the  person  whose  name  is  sub- 
scribed to  the  within  instrument,  and  acknowledged  that  he 
(she  or  they)   executed  the   same." 

[Outside  of  state — Certificate  of  clerk  of  court.]  Pro- 
vided, however,  that  any  acknowledgment  taken  without  this 

491 


§1190  CIVIL    CODE.  [Div.II,Pt.IV. 

state  in  accordance  with  the  laws  of  the  place  where  the  ac- 
knowledgment is  made,  shall  be  sufficient  in  this  state;  and 
provided  further,  that  the  certificate  of  the  clerk  of  a  court 
of  record  of  the  county  or  district  where  such  acknowledg- 
ment is  taken,  that  the  officer  certifying  to  the  same  is  au- 
thorized by  law  so  to  do,  and  that  the  signature  of  the  said 
officer  to  such  certificate  is  his  true  and  genuine  signature, 
and  that  such  acknowledgment  is  taken  in  accordance  with 
the  laws  of  the  place  where  the  same  is  made,  shall  be  prima 
facie  evidence  of  the  facts  stated  in  the  certificate  of  £aid 
clerk. 

History:      Enacted    March    21,    1872;    amended   March    30,    1874, 
Code  Amdts.   1S73-4,  p.   37;  February  26,  1S97,   Stats,  and  Amdts. 
1897.  p.    43;    amended  by   Code  Commission,   Act  March    16,    1901,* 
Stats,  and  Amdts.  1S00"-1,  p.   397,   held   unconstitutional,   see  his- 
tory, §  4  ante. 

§1190.  FORM  OF  ACKNOWLEDGMENT  BY  COR- 
PORATION. The  certificate  of  acknowledgment  of  an  in- 
strument executed  by  a  corporation  must  be  substantially 
in   the   following   form: 

"State  of I 

\  ss. 

"County  of ^ 

"On  this    day  of    in  the  year    before 

me  (here  insert  the  name  and  quality  of  the  officer),  per- 
sonally appeared   ,  known  to  me   (or  proved  to  me  on 

the  oath   of    )    to   be   the  president   (or  the   secretary) 

of  the  corporation  that  executed  the  within  instrument 
(where,  however,  the  instrument  is  executed  in  behalf  of  the 
corporation  by  some  one  other  than  the  president  or  secre- 
tary)  insert:  known  to  me   (or  proved  to  me  on  the  oath  of 

)  to  be  the  person  who  executed  the  within  instrument 

on  behalf  of  the  corporation  therein  named,  and  acknowl- 
edged to  me  that  such  corporation  executed  the  same." 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1900,  Stats,  and  Amdts.  1900-1,  p.  397,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.   603. 

492 


Tit.IV,ch.IV,art.III.]      FORM   OF   CERTIFICATE.   §§1191-1193 

§  1191.     FORM    OF    CERTIFICATE     OF    ACKNOWL- 
EDGMENT BY  MARRIED  WOMAN  [repealed]. 

History:      Enacted    March    21,    1872;    repealed    March    19,    1S91, 
Stats,  and  Amdts.   1891,  p.   137. 


§  1192.  FORM  OF  CERTIFICATE  OF  ACKNOWL- 
EDGMENT BY  ATTORNEY  IN  FACT.  Tlie  certificate  of 
acknowledgment  by  an  attorney  in  fact  must  be  substantially 
in   the   following  form: 

"State  of 

"County  of 

"On    this    ....     day   of    ,   in   the   year    ,   before 

me    (here   insert   the    name   and   quality   of   the   officer)    per- 
sonally appeared   ,  known  to  me   (or  proved  to  me  on 

the  oath   of    )    to   be    the   person   whose   name   is    sub- 
scribed to   the  within  instrument  as  the  attorney  in  fact  of 

,    and    acknowledged    to    me    that    he    subscribed    the 

name   of    thereto   as  principal,  and  his   own  name  as 

attorney  in  fact." 

History:      Enacted  March   21,   1872. 


§1193.  OFFICERS  MUST  AFFIX  THEIR  SIGNA- 
TURES. Officers  taking  and  certifying  acknowledgments 
or  proof  of  instruments  for  record,  must  authenticate  their 
certificates  by  affixing  thereto  their  signatures,  followed  by 
the  names  of  their  offices;  also,  their  seals  of  office,  if  by  the 
laws  of  the  state  or  country  where  the  acknowledgment  or 
proof  is  taken,  or  by  authority  of  which  the}'  are  acting, 
they  are  re<iuired  to  have  official  seals. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdls.  1900-1,  p.  397,  held 
unconstitutional,  see  history,   §  4  ante. 

493 


§§1194-1197  CIVIL  CODE.  [Div.n,Pt.lV. 

§  1194.  CERTIFICATE  OF  AUTHORITY  OF  JUS- 
TICES IN  CERTAIN  CASES.  The  certificate  of  proof  or 
acknowledgment,  if  made  before  a  justice  of  the  peace,  when 
used  in  any  c'ountry  other  than  that  in  which  he  resides, 
must  be  accompanied  by  a  certificate  under  the  hand  and 
seal  of  the  clerk  of  the  county  in  which  the  justice  resides, 
setting  forth  that  such  justice,  at  the  time  of  taking  such 
proof  or  acknowledgment,  was  authorized  to  take  the  same, 
and  that  the  clerk  is  acquainted  with  his  handwriting,  and 
believes  that  the  signature  to  the  original  certificate  is  gen- 
uine. 

HLstory:     Enacted  March  21,  1872. 

§  1195.  PROOF  OF  EXECUTION,  HOW  MADE.  Proof 
of  the  execution  of  an  instrument,  when  not  acknowledged, 
may  be   made   either: 

1.  By  the  party  executing  it,  or  either  of  them;  or, 

2.  By  a   subscribing  witness;   or, 

3.  By  other  witnesses,  in  cases  mentioned  in  section  eleven 
hundred    and   ninety-eight. 

History:     Enacted  March  21,  1872. 

§  1196.     WITNESS  MUST  BE  PERSONALLY  KNOWN 

TO  OFFICER.  If  by  a  subscribing  witness,  such  witness 
must  be  personally  known  to  the  officer  taking  the  proof 
to  be  the  person  whose  name  is  subscribed  to  the  instrument 
as  a  witness,  or  must  be  proved  to  be  such  by  the  oath  of  a 
credible   witness. 

History:     Enacted  March  21,  1872. 

§  1197.  WITNESS  MUST  PROVE,  WHAT.  The  sub- 
scribing witness  must  prove  that  the  person  whose  name  is 
subscribed  to  the  instrument  as  a  party  is  the  person  de- 
scribed in  it,  and  that  such  person  executed  it,  and  that  the 
witness  subscribed  his  name  thereto  as  a  witness. 
History:     Enacted  March  21,  1872. 

494 


Tit.IV,ch.IV,art.lII.|        HAXDWitiTiNr..  §§1198,1199 

§1198.     HANDWRITING  MAY   BE   PROVED,  WHEN. 

The  execution  of  an  instrument  may  be  established  by  proof 
of  the  handwriting  of  the  party  and  of  a  subscribing  wit- 
ness, if  there  is  one,  in  the  following  cases: 

1.  When  the  parties  and  all  the  subscribing  witnesses  are 
dead;  or, 

2.  When  the  parties  and  all  the  subscribing  witnesses  are 
non-residents  of   the   state;   or, 

3.  When  the  place  of  their  residence  is  unknown  to  the 
party  desiring  the  proof,  and  cannot  be  ascertained  by  the 
exercise  of  due  diligence;  or, 

4.  When  the  subscribing  witness  conceals  himself,  or  can- 
not be  found  by  the  officer  by  the  exercise  of  due  diligence 
in  attempting   to  serve   the   subpoena  or  attachment;   or, 

5.  In  case  of  the  continued  failure  or  refusal  of  the  wit- 
ness to  testify,  for  the  space  of  one  hour,  after  his  ap- 
pearance. 

History:     Enacted  March  21,  1872. 


§1199.  EVIDENCE  OF  HANDWRITING  MUST 
PROVE,  WHAT.  Tlie  evidence  taken  under  the  preceding 
section  must  satisfactorily  prove  to  the  officer  the  following 
facts: 

1.  The  existence  of  one  or  more  of  the  conditions  men- 
tioned therein;   and, 

2.  That  the  witness  testifying  knew  the  person  whose  name 
purports  to  be  subscribed  to  the  instrument  as  a  party,  and 
is  well  acquainted  with  his  signature,  and  that  it  is  genuine; 
and, 

3.  That  the  witness  testifying  personally  knew  the  person 
who  subscribed  the  instrument  as  a  witness,  and  is  well  ac- 
quainted with   his  signature,  and   that  it  is  genuine;  and, 

4.  The  place  of  residence  of  the  witness. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-1,  pp.    227,   228. 

495 


§§1200-1202  CIVIL    CODE.  [Div.II,Pt.IV. 

§  1200.  CERTIFICATE  OF  PROOF.  An  officer  taking 
proof  of  the  execution  of  any  instrument  must,  in  his  cer- 
tificate indorsed  thereon  or  attached  thereto,  set  forth  all  the 
matters  required  by  law  to  be  done  or  known  by  him,  or 
proved  before  him  on  the  proceeding,  together  with  the 
names  of  all  the  witnesses  examined  before  him.  their  places 
of  residence  respectively,  and  the  substance  of  their  testi- 
mony. 

History:     Enacted  March  21,  1872. 


§  1201.  OFFICERS  AUTHORIZED  TO  DO  CERTAIN 
THINGS.  Officers  authorized  to  take  the  proof  of  instru- 
ments are  authorized  in  such  proceedings: 

1.  To  administer  oaths  or  affirmations,  as  prescribed  in 
section  two  thousand  and  ninety-three.  Code  of  Civil  Pro- 
cedure; 

2.  To  employ  and  swear  interpreters; 

3.  To  issue  subpoena,  as  prescribed  in  section  nineteen 
hundred  and  eighty-six,   Code  of  Civil  Procedure; 

4.  To  punish  for  contempt,  as  prescribed  in  sections  nine- 
teen hundred  and  ninety-one,  nineteen  hundred  and  ninety- 
three,  nineteen  hundred  and  ninety-four,  Code  of  Civil  Pro- 
cedure. 

The  civil  damages  and  forfeiture  to  the  party  aggrieved  are 
prescribed  in  section  nineteen  hundred  and  ninety-two,  Code 
of    Civil    Procedure. 

Histor>-:     Enacted  March  21,  1872. 


§  1202.  INSTRUMENT  IMPROPERLY  CERTIFIED, 
HOW  CORRECTED.  When  the  acknowledgment  or  proof 
of  the  execution  of  an  instrument  is  properly  made,  but  de- 
fectively certified,   any   party  interested   may  have   an   action 

496 


Tit.IV,ch.IV,art.III.]    JUDGMENT  proving.  §§1203-1205 

in    the    superior   court    to    obtain   a   judgment    correcting   the 
certificate. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  397,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  604. 


§1203.     JUDGMENT    PROVING    INSTRUMENT.     Any 

person  interested  under  an  instrument  entitled  to  be  proved 
for  record,  may  institute  an  action  in  the  superior  court 
against  the  proper  parties  to  obtain  a  judgment  proving 
such  instrument. 

'History.:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  398,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  604. 


§  1204.     EFFECT  OF  JUDGMENT  IN  SUCH  ACTION. 

A  certified  copy  of  the  judgment  in  a  proceeding  instituted 
under  either  of  the  two  preceding  sections,  showing  the  proof 
of  the  instrument,  and  attached  thereto,  entitles  such  instru- 
ment to   record,  with   like  effect  as  if  acknowledged. 

History:     Enacted  March  21,  1872. 

§  1205.  CONVEYANCE  HERETOFORE  MADE  TO 
BE  GOVERNED  BY  THEN  EXISTING  LAWS.  The  le- 
gality of  the  execution,  acknowledgment,  proof,  form,  or 
record  of  any  conveyance  or  other  instrument  made  before 
this  code  goes  into  effect,  executed,  acknowledged,  proved, 
or  recorded  is  not  affected  by  anything  contained  in  this 
chapter,  but  depends  for  its  validity  and  legality  upon  the 
laws   in  force  when   the  act  was  performed. 

History:     Enacted  March  21,  1872. 

497 


§§1206,1207  CIVIL  CODE.  Div.II,Pt.IV. 

§  1206.  RECORDING,  AND  AS  EVIDENCE,  TO  BE 
GOVERNED  BY  THEN  EXISTING  LAWS.  All  convey- 
ances of  real  property  made  before  this  code  goes  into  effect, 
and  acknowledged  or  proved  according  to  the  laws  in  force 
at  the  time  of  such  making  and  acknowledgment  or  proof, 
have  the  same  force  as  evidence,  and  may  be  recorded  in 
the  same  manner  and  with  the  like  effect,  as  conveyances 
executed  and  acknowledged  in  pursuance  of  this  chapter. 
History:     Enacted  March  21,  1S72. 

§  1207.  VALIDATING  DEFECTIVELY  EXECUTED 
INSTRUMENTS.  RECORD  IMPARTS  NOTICE.  CER- 
TIFIED COPIES.  Any  instrument  afifecting  the  title  to 
real  property,  including  any  instrument  executed  by  a  mar- 
ried woman  on  or  after  the  first  day  of  July,  1891,  which 
was,  previous  to  the  first  day  of  January,  one  thousand  nine 
hundred  and  fifteen,  copied  into  the  proper  book  of  record, 
kept  in  the  office  of  any  county  recorder,  imparts,  after  that 
date,  notice  of  its  contents  to  subsequent  purchasers  and  en- 
cumbrancers, notwithstanding  any  defect,  omission,  or  in- 
formality in  the  execution  of  the  instrument,  or  in  the  cer- 
tificate of  acknowledgment  thereof,  or  the  absence  of  any- 
such  certificate;  but  nothing  herein  affects  the  rights  of  pur- 
chasers or  encumbrancers  previous  to  the  taking  effect  of 
this  act.  Duly  certified  copies  of  the  record  of  any  such  in- 
strument may  be  read  in  evidence  with  like  eflfect  as  copies 
of  an  instrument  duly  acknowledged  and  recorded;  provided, 
when  such  copying  in  the  proper  book  of  record  occurred 
within  fifteen  years  prior  to  the  trial  of  the  action,  it  is 
shown  first   that   the  original  instrument  was   genuine. 

History:  Enacted  March  31,  1S74,  Code  Amdts.  1873-4,  p.  22S. 
amended  March  4,  1897,  Stats,  and  Amdt.s.  1897,  p.  641;  by  Code 
Commission,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  398, 
Act  lield  unconstitutional,  see  liistory,  §  4  ante;  amended  re- 
enacted  March  9,  1903,  Stats,  and  Amdts.  1903,  p.  108;  amended 
February  22,  1909,  Stats,  and  Amdts.  1909,  p.  45;  April  22,  1913, 
Stats,  and  Amdts.  1913,  p.  75;  June  5,  1915.  Stats,  and  Amdts. 
1915,  p.   1211.     In  effect  August  8,  1915. 

498 


Tit.IV,ch.IV,art.IV.]    filing  for  record.  §  1213 


ARTICLE  IV. 

EFFECT    OF    RECORDING,    OR    THE    WANT    THEREOF. 

[Coiniiii.sMiuiiers'  Note.- — "The  provisions  of  the  various  stat- 
utes concerning  conveyances,  wliicli  r'elate  to  the  effect  as  evi- 
dence of  instruments  acknowledged  or  recorded,  have  been 
placed  and  may  be  found  in  the  fourth  part  of  the  Code  of  Civil 
Procedure."] 

§  1213.  Conveyance    filed   w^ith    recorder    is    constructive    notice, 

etc. 

§  1214.  Conveyances  to  be  recorded,  or  are  void,   etc. 

§  1215.  Conveyance   defined. 

§  1216.  Powers   of  attorney,   how  revoked. 

§  1217.  Unrecorded  instrument  valid  between  the  parties. 

S  121X.  Recording  certified  copies  of  recorded  instruments. 

§  1213.  CONVEYANCE  FILED  WITH  RECORDER  IS 
CONSTRUCTIVE  NOTICE,  ETC.  Every  conveyance  of 
real  property  acknowledged  or  proved  and  certified  and  re- 
corded as  prescribed  by  law  from  the  time  it  is  filed  with 
the  recorder  for  record  is  constructive  notice  of  the  contents 
thereof  to  subsequent  purchasers  and  mortgagees;  and  a 
certified  copy  of  any  such  recorded  conveyance  maj'  be  re- 
corded in  any  other  county  and  when  so  recorded  the  record 
thereof  shall  have  the  same  force  and  efifect  as  though  it  was 
of  the  original  conveyance  and  where  such  original  convey- 
ance has  been  recorded  in  any  county  wherein  the  property 
therein  mentioned  is  not  situated  a  certified  copy  of  such 
recorded  conveyance  may  be  recorded  in  the  county  where 
such  property  is  situated  with  the  same  force  and  effect  as 
if  the  original  conveyance  had  been  recorded  in  such  county. 

HLstory:  Enacted  March  21,  1S72;  amended  March  3,  1897, 
Stats,  and  Amdts.  1897,  p.  .'i9;  Marcli  10.  1909,  Stats,  and  Amdts. 
1909,  p.  278. 


499 


§§1214-1217  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1214.  CONVEYANCES  TO  BE  RECORDED,  OR  ARE 
VOID,  ETC.  Every  convc3'ance  of  real  property,  other 
than  a  lease  for  a  term  not  exceeding  one  year,  is  void  as 
against  any  subsequent  purchaser  or  mortgagee  of  the  same 
property,  or  any  part  thereof,  in  good  faith  and  for  a  val- 
uable consideration,  whose  conveyance  is  first  duly  recorded, 
and  as  against  any  judgment  affecting  the  title,  unless  such 
conveyance  shall  have  been  duly  recorded  prior  to  the  rec- 
ord  of   notice   of   action. 

Historj-:  Enacted  March  21,  1ST2;  amended  March  12,  1S95, 
Stats,  and  Amdts.  1895,  p.  50. 

§  1215.  CONVEYANCE  DEFINED.  The  term  "convey- 
ance," as  used  in  sections  twelve  hundred  and  thirteen  and 
twelve  hundred  and  fourteen,  embraces  every  instrument  in 
writing  by  which  any  estate  or  interest  in  real  property  is 
created,  aliened,  mortgaged,  or  encumbered,  or  by  which  the 
title  to  any  real  property  may  be   affected,  except  wills. 

History:     Enacted  March  21,  1S72. 

§  1216.     POWERS  OF  ATTORNEY,  HOW  REVOKED. 

No  instrument  containing  a  power  to  convey  or  execute  in- 
struments affecting  real  property,  which  has  been  recorded, 
is  revoked  b}^  any  act  of  the  party  by  whom  it  was  executed, 
unless  the  instrument  containing  such  revocation  is  also  ac- 
knowledged or  proved,  certified  and  recorded,  in  the  same 
office  in  which  the  instrument  containing  the  power  was  re- 
corded. 

History:     Enacted  March  21,  1S72. 

§  1217.  UNRECORDED  INSTRUMENT  VALID  BE- 
TWEEN THE  PARTIES.  An  unrecorded  instrument  is 
valid  as  between  the  parties  thereto  and  those  who  have  no- 
tice thereof. 

History:     Enacted  March  21,  1872. 
500 


Tit.I V,ch. I V.art.V.] CERTIFIED  COPIES.  §§1218-1228 

§  1218.  RECORDING  CERTIFIED  COPIES  OF  RE- 
CORDED INSTRUMENTS.  A  certified  copy  of  an  instru- 
ment affecting  the  title  to  real  property,  once  recorded,  or 
a  certified  copy  of  the  record  of  such  instrument  may  be  re- 
corded in  any  other  county,  and,  when  so  recorded,  the  rec- 
ord thereof  has  the  same  force  and  effect  as  though  it  was 
of  the  original  instrument. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
604;  amended  May  30,  1913,  Stats,  and  Amdts.  1913,  p.  335.  In 
effect  August  10,  1913. 


CHAPTER  V. 

UNLAWFUL  TRANSFERS. 

§  1227.     Certain   instruments  void  against  purchasers,  etc. 

§  1228.     Not  void  against  purcliaser  having  notice,  unless  fraud 

is  mutual. 
§  1229.     Power    to    revoke,    when    deemed    executed. 
§  1230.     Same.      [Deemed  executed  wlien  entitled  to  execute.] 
§  1231.     Other  provisions. 

§  1227.     CERTAIN    INSTRUMENTS    VOID    AGAINST 

PURCHASERS,  ETC.  Every  instrument,  other  than  a  will, 
affecting  an  estate  in  real  property,  including  every  chaige 
upon  real  property,  or  upon  its  rents  or  profits,  made  with 
intent  to  defraud  prior  or  subsequent  purchasers  thereof,  or 
encumbrancers  thereon,  is  void  as  against  every  purchaser 
or  encumbrancer,  for  value,  of  the  same  property,  or  the 
rents  or  profits  thereof. 

History:     Enacted  March  21,  1872. 

§  1228.  NOT  VOID  AGAINST  PURCHASER  HAVING 
NOTICE,  UNLESS  FRAUD  IS  MUTUAL.  Xo  instrument 
is   to   be   avoided  under   the   last   section,   in   favor   of  a   sub- 

501 


§§1229-1231  CIVIL  CODE.  rOiv.II.Pt.IV. 

sequent  purchaser  or  encumbrancer  having  notice  thereof  at 
the  time  his  purchase  was  made,  or  his  lien  acquired,  unless 
the  person  in  whose  favor  the  instrument  was  made  was 
privy  to  the   fraud  intended. 

History:  Enacted  March  21,  1872,  founded  upon  §  2,  Act  April 
19,   1850,  Stats.   1850,  p.   266. 

§  1229.  POWER  TO  REVOKE,  WHEN  DEEMED  EX- 
ECUTED. Where  a  power  to  revoke  or  modify  an  instru- 
ment affecting  the  title  to,  or  the  enjoyment  of,  an  estate  in 
real  property,  is  reserved  to  the  grantor,  or  given  to  any 
other  person,  a  subsequent  grant  of,  or  charge  upon,  the 
estate,  by  the  person  having  the  power  of  revocation,  in  fa- 
vor of  a  purchaser  or  encumbrancer  for  value,  operates  as  a 
revocation  of  the  original  instrument,  to  the  extent  of  the 
power,  in  favor  of  such  purchaser  or  encumbrancer. 

History:  Enacted  March  21,  1872,  founded  upon  §  4  Act  April 
19,  1850,  Stats.  1850,  p.   266. 

§  1230.  SAME.  [DEEMED  EXECUTED  WHEN  EN- 
TITLED TO  EXECUTE.]  Where  a  person  having  a  pow- 
er of  revocation,  within  the  provisions  of  the  last  section, 
is  not  entitled  to  execute  it  until  after  the  time  at  which  he 
makes  such  a  grant  or  charge  as  is  described  in  tliat  sec- 
tion, the  power  is  deemed  to  be  executed  as  soon  as  he  is 
entitled  to  execute  it. 

History:  Enacted  March  21,  1872,  founded  upon  §  6,  Act  April 
19,   1850,   Stats.   1850,  p.   267. 

§1231.  OTHER  PROVISIONS.  Other  provisions  con- 
cerning unlawful  transfers  are  contained  in  part  two,  division 
fourth,  of  this  code,  concerning  the  special  relations  of  debtor 
and  creditor. 

History:     Elnacted  March  21,  1872. 


502 


Tit.V,ch.I.]  HOMESTEAD— AVHAT    IS.  §  123'/ 


TITLE  V. 

HOMESTEADS. 

Chapter  I.     General    Provisions,   §§  1237-1261. 

II.     Homestead    of   the    Head    of   a    Family.    §§  1262- 
1265. 
III.     Homestead   of   Other   Persons,   §§  1266-1269c. 


CHAPTER  I. 

GENERAL  PROVISIONS. 

§  1237.  Homestead,  of  what  it  consists. 

§  1238.  From  what  may  be  selected. 

§  1239.  From  what  not. 

§  1240.  Exempt  from  forced  sale. 

§  1241.  Sale   on   execution,   when. 

§  1242.  How   conveyed   or  encumbered. 

§  1243.  How   abandoned. 

§  1244.  Same.      [Effectual   from    when.] 

§  1245.  Proceedings  on  execution  against  homestead. 

§  1246.  Same.      [Application,   how   made.] 

§1247.  Same.      [Petition,   where   filed,] 

§  1248.  Same.      [Notice   of  hearing,   service.] 

§  1249.  Same.      [Appointing  appraisers.] 

§  1250.  Same.      [Appraisers  to  be  sworn.] 

§  1251.  Same.      [Determining  value   and   divisibility.] 

§  1252.  Same.      [Report  of  appraisers,  contents.] 

§  1253.  Same.      [Setting    off    homestead    exemption.] 

§  1254.  Same.      [Order   directing   sale,   when.] 

§  1255.  Same.      [What   bid   may   be   received.] 

§  1256.  Same.      [Application   of  proceeds  of  sale.] 

§  1257.  After    sale,    money    equal    to    homestead    exemption    pri 

tected. 

§  1258.  Compensation    of  appraisers. 

§  1259.  Costs.      [How   paid    and    collected.] 

§  1260.  Who  may  select  homestead,  value  of. 

§  1261.  Head  , of  a  family  defined. 

503 


§1237  CIVIL   CODE.  [Div.II,Pt.IV. 

§1237.     HOMESTEAD,     OF     WHAT     IT     CONSISTS. 

The  homestead  consists  of  the  dwelling-house  in  which  the 
claimant  resides,  and  the  land  on  which  the  same  is  situated, 
selected  as  in  this  title  provided. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  228;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  398,  held  unconsti- 
tutional, see  history,  §  4  ante. 


§  1238.     FROM    WHAT    MAY    BE    SELECTED.     If   the 

claimant  be  married,  the  homestead  may  be  selected  from 
the  community  property,  or  the  separate  property  of  the 
husband,  or,  with  the  consent  of  the  wife,  from  her  separate 
property.  When  the  claimant  is  not  married,  but  is  the 
head  of  a  family,  within  the  meaning  of  section  one  thou- 
sand two  hundred  and  sixty-one,  the  homestead  may  be  se- 
lected  from  any  of  his  or  her  property. 

History:      Enacted    March    21,    1872;    amended   March    30,    1874, 
Code  Amdts.  1873-4,  p.  229. 


§  1239.  FROM  WHAT  NOT.  The  homestead  cannot  be 
selected  from  the  separate  property  of  the  wife,  without  her 
consent,  shown  by  her  making  or  joining  in  making  the  dec- 
laration  of   homestead. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,   p.   229. 


§  1240.  EXEMPT  FROM  FORCED  SALE.  The  home- 
stead is  exempt  from  execution  or  forced  sale,  except  as  m 
this    title    provided. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  399,  held 
unconstitutional,  see  history,  §  4  ante. 

504 


Tit.V.ch.I.]  SALE  ON  EXECUTION,   ETC.  §§  1241-1243 

§1241.  SALE  ON  EXECUTION,  WHEN,  Tlie  home- 
stead is  subject  to  execution  or  forced  sale  in  satisfaction  of 
judgments  obtained: 

1.  Before  the  declaration  of  homestead  was  filed  for  rec- 
ord, and  which  constitute  liens  upon  the  premises. 

2.  On  debts  secured  by  mechanics,  contractors,  subcon- 
tractors, artisans,  architects,  builders,  laborers  of  every  class, 
materialmen's  or  vendors'  liens  upon  the  premises. 

3.  On  debts  secured  by  mortgages  on  the  premises,  exe- 
cuted and  acknowledged  by  husband  and  wife,  or  by  an  un- 
married  claimant. 

4.  On  debts  secured  by  mortgages  on  the  premises,  exe- 
cuted and  recorded  before  the  declaration  of  homestead  was 
filed   for  record. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  229;  April  6,  1880,  Code  Amdts.  1880 
(C.  C.  pt.),  p.  7;  March  9,  1887,  Stats,  and  Amdts.  1887.  p.  81. 
In    force   March    9.   1887. 


§  1242.     HOW   CONVEYED    OR   ENCUMBERED.     The 

homestead  of  a  married  person  cannot  be  conveyed  or  en- 
cumbered unless  the  instrument  by  which  it  is  conveyed  or 
encumbered  is  executed  and  acknowledged  by  both  husband 
and  wife. 

History:     Enacted  March   21,   1872. 

§  1243.  HOW  ABANDONED.  A  homestead  can  be 
abandoned  only  by  a  declaration  of  abandonment,  or  a  grant 
thereof,  executed  and  acknowledged: 

1.  By  the  husband  and  wife,  if  the  claimant  is  married; 

2.  By   the   claimant,   if  unmarried. 


History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  399,  held 
unconstitutional,   see  history,   §  4  ante. 

505 


§§1244-1246  CIVIL  CODE.  |  Div.II,Pt.IV. 

§  1244.     SAME.     [EFFECTUAL       FROM       WHEN.]     A 

declaration   of  abandonment  is  effectual  only   from   the   time 
it  is  filed  in  the  office  in  which  the  homestead  was  recorded. 

History:      Enacted  March   21,   1872. 


§  1245.  PROCEEDINGS  ON  EXECUTION  AGAINST 
HOMESTEAD.  When  an  execution  for  the  enforcement 
of  a  judgment  obtained  in  a  case  not  within  the  classes 
enumerated  in  section  one  thousand  two  hundred  and  forty- 
one  is  levied  upon  the  homestead,  the  judgment  creditor  may 
at  any  time  within  sixty  days  thereafter  apply  to  the  su- 
perior court  of  the  county  in  which  the  homestead  is  sit- 
uated for  the  appointment  of  persons  to  appraise  the  value 
thereof,  and  if  such  application  shall  not  be  made  within 
sixty  days  after  the  levy  of  such  execution  the  lien  of  the 
execution  shall  cease  at  the  expiration  of  said  period,  and  no 
execution  based  upon  the  same  judgment  shall  thereafter  be 
levied  upon  the  homestead. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  228;  by  Code  Commission,  Act  Marcli 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  398,  held  unconstitutional, 
see  Kerr's  Cyc.  C.  C.  §  4;  April  12,  1911,  Stats,  and  Amdts.  1911, 
p.    888. 


§  1246.     SAME.     [APPLICATION,  HOW  MADE.]     The 

application    must    be    made    upon    a    verified    petition    of    the 
judgment  creditor  showing: 

1.  The  fact  that  an  execution  has  been  levied  upon  the 
homestead  within  sixty  days  prior  to  the  filing  of  said  pe- 
tition. 

2.  A  description  of  the  homestead  and  the  name  of  the 
claimant. 

3.  That  the  value  of  the  homestead  exceeds  the  amount  of 
the   homestead   exemption. 

506 


Tit.V.ch.I.]     PETITION   TO   SELL — NOTICE,    ETC.    §§  1247-1249 

4.  That    no    previous    execution    arising    out    of    the    same 
judgment  has  been  levied  upon  said  homestead. 

History:      Enacted    March    21,    1872;    amended    April    12,    1911, 
Stats,    and    Amdts.    1911,    p.    SS'S. 


§  1247.     SAME.     [PETITION,    WHERE    FILED.]     The 

petition  must  be  filed  with  the  clerk  of  the  superior  court. 

History:  Enacted  March  21,  1S72;  amended  April  6,  1880,  Code 
Amdts.  1880  (C.  C.  pt.),  p.  8;  amended  by  Code  Commission. 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  399,  held  un- 
constitutional,  see  history,   §  4  ante. 


§  1248.     SAME.     [NOTICE   OF   HEARING,   SERVICE.] 

Within  ninety  days  from  the  date  of  filing  the  petitiou,  a  copy 
thereof,  with  the  notice  of  the  time  and  place  of  hearing, 
must  be  served  upon  the  claimant  or  his  attorneys  at  least 
two  days  before  the  hearing;  and  if  such  notice  shall  not  be 
so  served,  the  lien  of  the  execution  sliall  cease  at  the  ex- 
piration of  said  period  of  ninety  days,  and  no  execution  based 
upon  the  same  judgment  shall  thereafter  be  levied  upon  the 
homestead. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  399, 
held  unconstitutional,  see  Kerr's  Cyc.  C.  C.  §  4;  amended  April 
12   ,1911,   Stats,  and  Amdts.   1911,  p.   889. 


§  1249.  SAME.  [APPOINTING  APPRAISERS.]  .M 
the  hearing  the  judge  may,  upon  proof  of  the  service  of  a 
copy  of  the  petition  and  notice,  and  of  the  facts  stated  in 
the  petition,  appoint  three  disinterested  residents  of  the 
county  to  appraise  the  value  of  the  homestead. 

Hi-story:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400, 
held  unconstitutional,   see  history,   §  4   ante. 

507 


§§1250-1254  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1250.     SAME.     [APPRAISERS  TO  BE  SWORN.]    The 

persons  appointed,  before  entering  upon  the  performance  of 
their  duties,  must  take  an  oath  to  faithfully  perform  the 
same. 

History:     Enacted  March   21,   1S72. 

§  1251.  SAME.  [DETERMINING  VALUE  AND  DI- 
VISIBILITY.] They  must  view  the  premises  and  appraise 
the  value  thereof,  and  if  the  appraised  value  exceeds  the 
homestead  exemption  they  must  determine  whether  the  land 
claimed  can  be  divided  without  material  injur}'. 

History:     Enacted  March   21,   1872. 

§  1252.  SAME.  [REPORT  OF  APPRAISERS,  CON- 
TENTSJ  Within  fifteen  days  after  their  appointment  they 
must  make  to  the  judge  a  report  in  writing,  which  report 
must  show  the  appraised  value  and  their  determination  upon 
the  matter  of  a  division  of  the  land  claimed. 

History:  Enacted  March  21.  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400, 
held  unconstitutional,   see  liistory,   §  4  ante. 

§  1253.  SAME.  [SETTING  OFF  HOMESTEAD  EX- 
EMPTION.] If,  from  the  report,  it  appears  to  the  judge 
that  the  land  claimed  can  be  divided  without  material  in- 
jury, he  must,  by  an  order,  direct  tlie  appraisers  to  set  off 
to  the  claimant  so  much  of  the  land,  including  the  residence, 
as  will  amount  in  value  to  the  homestead  exemption,  and  the 
execution  may  be  enforced  against  the  remainder  of  the  land. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400, 
held  unconstitutional,   see  history,    §  4   ante. 

§  1254.     SAME.    [ORDER  DIRECTING  SALE,  WHEN.] 

If,  from  the  report,  it  appears  to  the  judge  that  the  land 
claimed   exceeds   in  value   the   amount   of  the   homestead   ex- 

508 


Tit.V,ch.I.]  APPLICATION   OF    PROCEEDS.  §§  12S5-125S 

emption,   and    that    it   cannot   be    divided,   he    must   make   an 
order   directing  its   sale   under  the   execution. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mi.ssion,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  400, 
held  unconstitutional,   see   history,   §  4   ante. 


§  1255.     SAME.     [WHAT    BID    MAY    BE    RECEIVED.] 

At  such  sale  no  bid  must  be  received,  unless  it  exceeds  the 
amount  of  the  homestead  exemption. 

Hi.story:     Enacted  March   21,   1872. 


§  1256.  SAME.  [APPLICATION  OF  PROCEEDS  OF 
SALE.]  If  the  sale  is  made,  the  proceeds  thereof,  to  the 
amount  of  the  homestead  exemption,  must  be  paid  to  the 
claimant,  and  the  balance  applied  to  the  satisfaction  of  the 
execution. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400, 
held  unconstitutional,   see   nistory,   §  4   ante. 

§1257.  AFTER  SALE,  MONEY  EQUAL  TO  HOME- 
STEAD EXEMPTION  PROTECTED.  The  money  paid  to 
the  claimant  is  entitled,  for  the  period  of  six  months  there- 
after, to  the  same  protection  against  legal  process  and  the 
voluntary  disposition  of  the  husband,  which  the  law  gives  to 
the  homestead. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code   Amdts.,   1873-4,  p.   230. 

§  1258.  COMPENSATION  OF  APPRAISERS.  The 
court  must  fix  the  compensation  of  the  appraisers;  not  to 
exceed  five  dollars  per  day  each  for  the  time  actually  en- 
gaged. 

History:     Enacted  March   21,   1872. 

509 


§§1259-1261  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1259.     COSTS.     [HOW     PAID     AND     COLLECTED.] 

The  execution  creditor  must  pay  the  costs  of  these  proceed- 
ings in  the  first  instance;  but  in  the  cases  provided  for  in 
sections  twelve  hundred  and  fifty-three  and  twelve  hundred 
and  fifty-four  the  amount  so  paid  must  be  added  as  costs  on 
execution,  and  collected   accordingly. 

History:     Enacted  March   21,   1S72. 

§  1260.  WHO  MAY  SELECT  HOMESTEAD,  VALUE 
OF.     Homestead  may  be  selected  and  claimed: 

1.  Of  not  exceeding  five  thousand  dollars  in  value  by  any 
head   of   a   family; 

2.  Of  not  exceeding  one  thousand  dollars  in  value  by  any 
other    person. 

History:     Enacted  March   21,   1S72. 

§  1261.  HEAD  OF  A  FAMILY  DEFINED.  The  phrase 
"head  of  a  family,"  as  used  in  this  title,  includes  within  its 
meaning: 

1.  The  husband,  when  the  claimant  is  a  married  person. 

2.  Every  person  who  has  residing  on  the  premises  with  him 
,T  her,  and  vmder  his   or  her  care   and   maintenance,   either: 

(1)  His  or  her  minor  child,  or  minor  grandchild,  or  the 
minor  child  of  his  or  her  deceased  wife  or  husband;  (2)  a 
minor .  brother  or  sister,  or  the  niinor  child  of  a  deceased 
brother  or  sister. 

.3.  A   father,  mother,  grandfather,  or  grandmother. 

4.  The  father,  mother,  grandfather,  or  grandmother  of  a 
deceased  husband  or  wife. 

5.  An  unmarried  sister,  or  any  other  of  the  relatives  men- 
tioned in  this  section,  who  have  attained  the  age  of  majority, 
and  are  unable  to  take  care  of  or  support  themselves. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  230;  March  9,  1893,  Stats,  and  Amdts. 
1893,   pp.   123,  124.     In  force  March   9,   1893. 

510 


TitA'.ch.I  [.]      SELECTION — DECLARATION  OF.       §§1262,1263 


CHAPTER  II. 

HOMESTEAD  OF  THE  HEAD  OF  A  FAMILY. 

§  1262.  Mode   of   selection. 

§1263.  Declaration    of    liomestead.       [Must    contain    what.l 

§  1264.  Declaration   mu.st   be   recorded. 

§  1265.  Tenure  by  which  homestead  is  lield. 

§  1262.  MODE  OF  SELECTION.  In  order  to  select  a 
homestead,  tlic  husband  or  other  head  of  a  family,  or  in  case 
the  husband  has  not  made  such  selection,  the  wife,  must 
execute  and  acknowledge,  in  the  same  manner  as  a  grant  of 
real  property  is  acknowledged,  a  declaration  of  homestead, 
and  file  the  same  for  record. 

HLstory:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   230. 

§  1263.  DECLARATION  OF  HOMESTEAD.  [MUST 
CONTAIN  WHAT.]  The  declaration  of  homestead  must 
contain: 

1.  A  statement,  showing  that  the  person  making  it  is  the 
head  of  a  family,  and,  if  the  claimant  is  married,  the  name 
of  the  spouse;  or,  when  the  declaration  is  made  by  the  wife, 
showing  that  her  husband  has  not  made  such  declaration, 
and  that  she  therefore  makes  the  declaration  for  their  joint 
benefit; 

2.  A  statement  that  the  person  making  it  is  residing  on 
the  premises,   and   claims   them  as  a   homestead; 

3.  A  description   of  the  premises; 

4.  An   estimate  of  their  actual  cash   value. 

History:  Enacted  Marcli  21,  1872;  amended  March  30.  1874. 
Code  Amdts.  1873-4,  p.  231;  amended  by  Code  Commission.  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400,  held  unconsti- 
tutional, see  history,  §4  ante;'amendnient  re-enacted  Marcli  21, 
1905,   Stats,   and  Amdts.   1905,  p.   400. 

511 


§§1264,1265  CIVIL  CODE.  [Div.lI.Pt.IV. 

§  1264.     DECLARATION  MUST  BE  RECORDED.     The 

declaration  must  be  recorded  in  the  office  of  the  recorder  of 
the  county  in  which  the  land  is  situated. 

History:      Enacted  March   21,   1872. 

§  1265.  TENURE  BY  WHICH  HOMESTEAD  IS 
HELD.  From  and  after  the  time  the  declaration  is  filed  for 
record;  the  premises  therein  described  constitute  a  home- 
stead. If  the  selection  was  made  by  a  married  person  from 
the  community  property,  or  from  the  separate  property  ol 
the  spouse  making  the  selection  or  joining  therein,  the  land 
so  selected,  on  the  death  of  either  of  the  spouses,  vests  in 
the  survivor,  subject  to  no  other  liability  than  such  as  exists 
or  has  been  created  under  the  provisions  of  this  title;  in 
other  cases,  upon  the  death  of  the  person  whose  property' 
was  selected  as  a  homestead,  it  shall  go  to  the  heirs  or  de- 
visees, subject  to  the  power  of  the  superior  court  to  assign 
the  same  for  a  limited  period  to  the  family  of  the  decedent; 
but  in  no  case  shall  it,  or  the  products,  rents,  issues  or  profits 
thereof  be  held  liable  for  the  debts  of  the  owner,  except  as 
provided  in  this  title;  and  should  the  homestead  be  sold  by 
the  owner,  the  proceeds  arising  from  such  sale  to  the  ex- 
tent of  the  value  allowed  for  a  homestead  exemption  as  pro- 
vided in  this  title  shall  be  exempt  to  the  owner  of  the  home- 
stead for  a  period  of  six  months  next  following  such  sale. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  231;  April  6,  1880,  Code  Amdts.  1880 
(C.  C.  pt.),  p.  8;  April  16,  1909,  Stats,  and  Amdts.  1909,  p.  972; 
February   15,   1911,  Stats,  and  Amdts.    1911,  p.    61. 


512 


Tit.V.ch.III.]  OTHER  HOMESTEADS.  §§1266-1269 


CHAPTER  III. 

HOMESTEAD    OF    OTHER    PERSONS. 

§  1266.  Mode    of    selection. 

§  1267.  Declaration  of  homestead. 

§  1268.  Declaration  must   be   recorded. 

§  1269.  Effect  of  filing  for  record  the  declaration  of  homestead. 

§  1266.  MODE  OF  SELECTION.  Any  person  other 
than  the  head  of  a  family,  in  the  selection  of  a  homestead, 
must  execute  and  acknowledge,  in  the  same  manner  as  a 
^rant  of  real  property  is  acknowledged,  a  "declaration  of 
homestead." 

History:  Enacted  March  21,  1872;  amended  bj-  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400,  held 
unconstitutional,  see   history,    §  4  ante. 

^  1267.  DECLARATION  OF  HOMESTEAD.  The  dec- 
laration must  contain  everything  required  by  the  second, 
third,  and  fourth  subdivisions  of  section  twelve  hundred  and 
sixty-three. 

History:      Enacted   March   21,   1872. 

§  1268.     DECLARATION  MUST  BE  RECORDED.     The 

declaration  must  be   recorded  in  the  office  of  the  county   re- 
corder of  the  county  in  which  the  land  is  situated. 

History-:      Enacted  March   21,   1872. 

§  1269.  EFFECT  OF  FILING  FOR  RECORD  THE 
DECLARATION  OF  HOMESTEAD.  Frt.m  and  alter  ihe 
time  the  declaration  is  filed  for  record,  the  land  described 
therein    is   a   homestead. 

History:     Enacted  March   21,  1872. 
17  513 


1269a  CIVIL  CODE.  [Div.II.Pt.IV. 


CHAPTER  IV. 
ALIENATION  OF  HOMESTEADS   OF  INSANE   PERSONS. 

§  1269a.   Petition  for  sale  or  mortgage  of  homestead  where  hus- 
band   or    wife    insane. 
§  1269b.      Notice   of  application    for   order. 
§  1296c.    When   order   may    be   made   and   effect   of   order. 

§  1269a.  PETITION  FOR  SALE  OR  MORTGAGE  OF 
HOMESTEAD  WHERE  HUSBAND  OR  WIFE  IN- 
SANE. In  case  of  a  homestead,  if  either  the  husband  or 
wife  becomes  hopelessly  insane,  the  husband  or  wife  not  in- 
sane may  petition  the  superior  court  of  the  county  in  which 
such  homestead  is  situated  for  an  order  permitting  the  hus- 
band or  wife,  not  insane,  to  sell  and  convey,  or  mortgage, 
such  homestead  to  raise  moneys  to  satisfy  a  lien  or  charge 
thereon,  or  to  provide  for  the  support  and  care  either  of  the 
sane  or  insane  spouse,  or  of  their  minor  children.  Such  pe- 
tition must  be  subscribed  and  sworn  to  by  the  applicant,  set- 
ting forth  the  name  and  age  of  the  insane  httsband  or  wife; 
the  number,  age,  and  sex  of  the  children,  if  any,  of  such  in- 
sane husband  or  wife;  a  description  of  the  premises  consti- 
tuting the  homestead;  the  value  of  the  same;  the  county  in 
which  it  is  situated;  and  such  facts,  in  addition  to  that  of 
the  insanity  of  the  husband  or  wife,  relating  to  the  circum- 
stances and  necessities  of  the  applicant  and  his  or  her  fam- 
ily, as  he  or  she  may  rely  upon  in  support  of  the  petition. 

History:  Enacted  March  22,  1905,  Stats,  and  Amdts.  1905, 
p.   725. 

A  codification  of  §§  1  and  3,  Act  March  25.  1ST4,  Stats.  1S73-4, 
pp.   5S2,  583. 

514 


Tit.V,ch.lV.]  ALIENATION— NOTICE.  §§  1269b,  1269c 

§  1269b.     NOTICE    OF   APPLICATION    FOR    ORDER. 

Notice  of  the  application  for  such  order  must  be  given  by 
publication  of  the  same,  in  a  newspaper  published  in  the 
county  in  which  such  homestead  is  situated,  if  there  is  a 
newspaper  published  therein,  once  each  week  for  three  succes- 
sive weeks,  prior  to  the  hearing  of  such  application,  and  a 
copy  of  such  notice  must  also  be  personally  served  upon  the 
nearest  male  relative  of  such  insane  liusband  or  wife,  resi- 
dent in  this  state,  at  least  three  weeks  prior  to  such  appli- 
cation; and  in  case  there  is  no  such  male  relative  known  to 
the  applicant,  a  copy  of  such  notice  must  be  so  served  upon 
the  public  administrator  of  the  county  in  which  such  home- 
stead is  situated;  and  in  such  case  it  is  the  duty  of  such  pub- 
lic administrator  to  appear  and  represent  the  interests  of  such 
insane  person.  For  all  such  services  rendered  by  the  public 
administrator  he  must  be  allowed  a  reasonable  fee,  to  be 
.fixed  by  the  court,  and  the  same  must  be  taxed  as  costs 
against  the  person  making  application  for  the  order  herein, 
provided  for. 

Historj-:       Enacted    March    22,     1905,    Stats,    and    Amdts.     1905, 
p.   726. 

A    codification    of    §  2,    Act    March    25,    1874,    Stats.    1S73-4,    pp. 
582.  583. 


§  1269c.  WHEN  ORDER  MAY  BE  MADE  AND  EF- 
FECT OF  ORDER.  If  it  appears  to  the  court  that  such 
husband  or  wife  is  hopelessly  insane,  the  court  may  make 
an  order  permitting  the  husband  or  wife,  not  insane,  to  sell 
and  convey,  or  mortgage,  such  homestead,  and  thereafter  any 
sale,  conveyance,  or  mortgage  made  in  pursuance  of  such  or- 
der is  as  valid  and  effectual  as  if  the  property  affected  there- 
by was  the  absolute  property  of  the  person  making  such  sale, 
conveyance,  or  mortgage.  If  a  sale  is  ordered  it  must  be 
reported  to  and  confirmed  by  the  court.  Such  husband  or 
wife    must,    before   executing   any   mortgage   or   conveyance, 

515 


§  1269c  CIVIL  CODE.  [Div.II,Pt.IV. 

give  a  bond,  to  be  approved  by  the  judge  of  the  court,  in 
double  the  amount  of  the  mortgage,  or  double  the  value  of 
the  property  to  be  sold,  conditioned  to  account  for  the  pro- 
ceeds of  the  mortgage  or  sale  and  to  apply  such  proceeds 
only  as  the  court  may  direct. 

History:      Enacted    March    22,    1905,    Stats,    and    Amdts.    1905, 
p.   726. 

A  codification  of  §  4,  Act  March   25,  1874,  Stats.   1873-4,  p.   583. 


516 


Tit. VI, ch. I.]  WII.LS— EXECUTION,    ETC.  §  1270 


TITLE  VI. 

WILLS. 

Chapter  I.     Execution  and  Revocation  of  Wills,  §§  1270-1313. 
II.     Interpretation  of  Wills,  §§1317-1351. 
III.     General    Provisions    Relating    to    Wills,    §§  1357- 
1377. 


CHAPTER  I. 

EXECUTION   AND    REVOCATION    OF   WILLS. 


§  12 
§  12 
§  12 
§  12 
§  12 
§  12 
§  12 


0.  Who  may  make  a  will. 

1.  Monomaniac  incompetent  [repealed]. 

2.  Will,  or  part  thereof,  procured  by  fraud. 

3.  Will   of   married   woman. 

4.  What  may   pass   by   will. 

5.  Who    may   take    by    will. 

6.  Written  will,  how  t6  be  executed. 


§  1277.  Definition   of  an    [h]olographic  will. 

§  1278.  Witness   to  add  residence. 

§  1279.  Mutual  will. 

§  1280.  Competency  of  subscribing:  witness. 

§  1281.  Conditional   will. 

§  1282.  Gifts  to  subscribing  witness  void.     Creditors  competent 

witnesses. 

§  1283.  Witness  who   is   a   devisee   entitled   to   share    to   amount 

of  devise,   when. 

§  1284.  Will   made   out  of   this   state    [repealed]. 

§  1285.  Will  made  out  of  state  not  valid,  unless. 

§  1286.  Subsequent   change   of   domicile    [repealed]. 

§  1287.  Republication   by   codicil. 

§  1288.  Nuncupative  will,   how  to  be  executed. 

§  1289.  Requisites   of   a   valid   nuncupative   will. 

§  1290.  Proof  of  nuncupative  wills. 

§  1291.  Probate  of  nuncupative  wills. 

§  1292.  Written  will,  how   revoked. 

517 


§§1270,1271  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1293.     Evidence  of  revocation. 

§  1294.     Revocation    by    obliteration    on    face    of   will    [repealed]. 

§  1295.     Revocation    of   duplicate. 

§  1296.     Revocation  by  subsequent  will. 

§  1297.      Antecedent    not    revived    by     revocation    of    subsequent 

will. 
§  129S.     Revocation  by  marriage  and  birth  of  issue. 
§  1299.     Effect  of  marriage  of  a  man  on  his  will. 
§  1300.      Effect  of  a  marriage  of  a  woman  on  her  will. 
§  1301.     Contract    of   sale   not   a    revocation. 
§  1302.     Mortgage   not  a  revocation   of  will. 
§  1303.     Conveyance,  when  not  a  revocation. 
§  1304.      [Same.]      When    it    is   a   revocation. 
§  1305.     Revocation   of  codicils. 

§  1306.     After-born   child,   unprovided   for,    to   succeed. 
§  1307.      Children   or  issue  of  children  of  testator  unprovided  for 

by  his  will.      [To  succeed.] 
§  130S.      Share    of   after-born    child,    out    of    what   part    of    estate 

to  be  paid.  i 

§  1309.     Advancement    during    lifetime    of    testator. 
§  1310.     Death   of  devisee,  being  relation  of  testator,   in   lifetime 

of  testator,  leaving  lineal  descendants  [they  succeed!. 
§  1311.     Devises   of  land,   how   construed. 
§  1312.     Wills  pass  estate  subsequently  acquired. 
§  1313.     Restriction   on   devise   for   charitable  uses. 


§  1270.  WHO  MAY  MAKE  A  WILL.  Every  person 
over  the  age  of  eighteen  years,  of  sound  mind,  may,  by  las*: 
will,  dispose  of  all  his  estate,  real  and  personal,  and  such  es- 
tate not  disposed  of  by  w^ill  is  succeeded  to  as  provided  in 
title  seven  of  this  part,  being  chargeable  in  both  cases  with 
the  payment  of  all  the  decedent's  debts,  as  provided  in  the 
Code  of  Civil  Procedure. 

History:  Enacted  March  21,  1S72,  founded  upon  §  1,  Act  April 
10,  1850,   Stats.   1850,  p.   177. 


§  1271.     MONOMANIAC    INCOMPETENT    [repealed.] 

Hi.story:      Enacted    March    21,    1872,    repealed    March    30.    1874, 
Code  Amdts.    1873-4,  p.    232. 

518 


Tit.VI,ch.I.]  FRAUD  IN  PROCURING.  §§  1272-1275 

§  1272.  WILL,  OR  PART  THEREOF,  PROCURED  BY 
FRAUD.  A  will,  or  part  of  a  will,  procured  to  be  made  by 
duress,  menace,  fraud,  or  undue  influence,  may  be  denied 
probate;  and  a  revocation,  procured  by  the  same  means,  may 
be   declared  void. 

History:     Enacted  March   21,   1S72. 

§  1273.  WILL  OF  MARRIED  WOMAN.  A  married 
woman  may  dispose  of  all  her  separate  estate  by  will,  with- 
out the  consent  of  her  husband,  and  may  alter  or  revoke  the 
will  in  like  manner  as  if  she  were  single.  Her  will  must  be 
executed  and  proved  in  like  manner  as  other  wills. 

History:  Enacted  March  21,  1872,  founded  upon  §  2  Act  April 
10,  1850,  Stats.  1850,  p.  177;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.   232. 

§  1274.  WHAT  MAY  PASS  BY  WILL.  Every  estate 
and  interest  in  real  or  personal  property,  to  which  heirs,  hus- 
band, widow,  or  next  of  kin  might  succeed,  may  be  disposed 
of  by  will,  except  as  otherwise  provided  in  sections  fourteen 
hundred  and  one  and  fourteen  hundred  and  two. 

History:     Enacted  March   21,   1872. 

§  1275.  WHO  MAY  TAKE  BY  WILL.  A  testamentary 
disposition  may  be  made  to  any  person  capable  by  law  of 
taking  the  property  so  disposed  of,  except  that  corporations 
other  than  counties,  municipal  corporations,  and  corpora- 
tions formed  for  scientific,  literary,  or  solely  educational  or 
hospital  purposes,  cannot  take  under  a  will,  jnless  expressly 
authorized  by  statute;  subject,  however,  to  the  provisions  of 
section  thirteen  hundred  and  thirteen. 

History:  Enacted  March  21,  1872;  amended  March  29,  1874, 
Code  Amdts.  1S73-4,  p.  275;  amen^ied  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  402,  held  unconstitu- 
tional, see  history,  §  4  ante;  amendment  substantially  re-enacted 

519 


J  1276,  1277  CIVIL  CODE.  [Div.II.Pt.IV. 

March  20,  1903,  Stats,  and  Amdts.  1903,  p.  258,  merely  omitting 
the  words  "counties,  municipal  corporations,"  and  this  amend- 
ment of  the  Code  Commission  restored,  by  inserting  the  omitted 
words,  March   21,    1905,   Stats,   and  Amdts.   1905,   p.    605. 


§  1276.     WRITTEN  WILL,  HOW  TO  BE  EXECUTED. 

Every  will,  other  than  a  nuncupative  will,  must  be  in  writ- 
ing; and  every  will,  other  than  an  olograpliic  [holographic] 
will,  and  a  nuncupative  will,  must  be  executed  and  attested 
as   follows: 

1.  It  must  be  subscribed  at  the  end  thereof  by  the  testator 
himself,  or  some  person  in  his  presence  and  by  his  direction 
must  subscribe  his  name  thereto; 

2.  The  subscription  must  be  made  in  the  presence  of  the 
attesting  witnesses,  or  be  acknowledged  by  the  testator  to 
them  to  have  been  made  by  him  or  by  his  authority; 

3.  The  testator  must,  at  the  time  of  subscribing  or  acknowl- 
edging the  same,  declare  to  the  attesting  witnesses  that  the 
instrument   is  his  will;   and, 

4.  There  must  be  two  attesting  witnesses,  each  of  whom 
must  sign  the  same  as  a  witness,  at  the  end  of  the  will,  at 
tlie  testator's  request  and  in  his  presence. 

History:  Enacted  March  21,  1872,  founded  upon  §  3  Act  April 
10,  1850,  Stats.  1850,  p.  177;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  402,  held  unconstitu- 
tional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.   19u5,  p.  605. 

§1277.  DEFINITION  OF  AN  [H]OLOGRAPHIC 
WILL.  An  [h]olographic  will  is  one  that  is  entirely  written, 
dated,  and  signed  by  the  hand  of  the  testator  himself.  It  is 
subject  to  no  other  form,  and  may  be  made  in  or  out  of  this 
state,  and  need  not  be  witnessed. 

History:     Enacted  March  21,  1872. 

520 


Tit. VI, ch. I.]        WITNESSES— MUTUAL   WILLS.         §§  1278-1282 

§  1278.  WITNESS  TO  ADD  RESIDENCE.  A  witness 
to  a  written  will  must  write,  with  his  name,  his  place  of 
residence;  and  a  person  who  subscribes  the  testator's  name, 
by  his  direction,  must  write  his  own  name  as  a  witness  to 
the  will.  But  a  violation  of  this  section  docs  not  aflFect  the 
validity  of  the  will. 

History:      Enacted  March   L'l,   1S72. 


§  1279.  MUTUAL  WILL.  A  conjoint  or  mutual  will  is 
valid,  but  it  may  be  revoked  by  any  of  the  testators,  in  like 
manner  with  any  other  will. 

History:      Enacted  March  21,   1872. 


§  1280.     COMPETENCY  OF  SUBSCRIBING  WITNESS. 

If  the  subscribing  witnesses  to  a  will  are  competent  at  the 
time  of  attesting  its  execution,  their  subsequent  incompet- 
ency, from  whatever  cause  it  may  arise,  does  not  prevent 
the  probate  and  allowance  of  the  will,  if  it  is  otherwise  satis- 
factorily   proved. 

History:     Enacted  March  21,  1872,  founded  upon   §  4  Act  April 
10,    1850,    Stats.    1850,   p.    177. 


§  1281.  CONDITIONAL  WILL.  A  will,  tlic  validity  of 
which  is  made  by  its  own  terms  conditional,  may  be  denied 
probate,  according  to  the  event,  with  reference  to  the  con- 
dition. 

History:      Enacted  March   21,   1872. 

§  1282.  GIFTS  TO  SUBSCRIBING  WITNESSES  VOID. 
CREDITOR  COMPETENT  WITNESS.  All  beneficial  de- 
vises, legacies,  and  gifts  whatever,  made  or  given  in  any  will 
to  a  subscribing  witness  thereto,  are  void,  unless  there  are 
two  other  competent  subscribing  witnesses  to  the  same;  but 

521 


§§1283-1285  CIVIL  CODE.  [Div.II,Pt.IV. 

a  mere  charge  on  the  estate  of  the  testator  for  the  payment 
of  debts  does  not  prevent  his  creditors  from  being  competent 
witnesses  to  his  will. 

History:      Enacted  March  21,   1872,  founded  upon   §  5  Act  April 
10,    1S50,   Stat.s.    1S50,   p.    1T7. 


§  1283.  WITNESS  WHO  IS  A  DEVISEE,  ENTITLED 
TO    SHARE   TO   AMOUNT   OF   DEVISE,   WHEN.     If   a 

witness,  to  whom  any  beneficial  devise,  legacy,  or  gift,  void 
by  the  preceding  section,  is  made,  would  have  been  entitled 
to  any  share  of  the  estate  of  the  testator,  in  case  the  will 
should  not  be  established,  he  succeeds  to  so  much  of  the 
share  as  would  be  distributed  to  him,  not  exceeding  the  de- 
vise or  bequest  made  to  him  in  the  will,  and  he  may  recover 
the  same  of  the  other  devisees  or  legatees  named  in  the  will, 
in  proportion  to  and  out  of  the  parts  devised  or  bequeathed 
to   them. 

History:  Enacted  March  21,  1S72,  founded  upon  §  6  Act  April 
10,  1850,  Stats.  1850,  p.  177;  amended  March  30,  1874,  Code 
Amdts.   1S73-4,  p.    232. 


§  1284.  WILL  MADE  OUT  OF  THIS  STATE  [re- 
pealed]. 

History:  Enacted  March  21,  1872,  founded  upon  §  23  Act 
April  10,  1S50,  Stats.  1850,  p.  179;  repealed  March  30,  1874,  Code 
Amdts.   1S73-4,  p.   232. 


§  1285.  WILL  MADE  OUT  OF  STATE  NOT  VALID, 
UNLESS.  No  will  made  out  of  this  state  is  valid  as  a  will 
in  this  state,  unless  executed  according  to  the  provisions  of 
this  chapter,  except  that  a  will  made  in  a  state  or  countrj'  in 
which  the  testator  is  domiciled  at  the  time  of  his  death,  and 
valid  as  a  will  under  the  laws  of  such  state  or  country,  is 
valid  in  this  state  so  far  as  the  same  relates  to  personal  prop- 

522 


Tit.VI,ch.I.]  NUXCUPATiVE  WILL.  §§  1286-1289 

erty,   subject,  however,   to   the  provisions  of  section   thirteen 
hundred  and  thirteen. 

History:  Enacted  March  21,  1872;  amended  March  30,  187i, 
Code  Amdts.  1873-4,  p.  232;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  402,  held  uncon- 
stitutional, see  history,  §  4  ante;  amendment  re-enacted  March 
21,   1905,   Stats,  and  Amdts.   190.5,  p.   606. 


§1286.  SUBSEQUENT  CHANGE  OF  DOMICILE  [re- 
pealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1873-4,   p.    232. 

§1287.  REPUBLICATION  BY  CODICIL.  The  execu- 
tion of  a  codicil,  referring  to  a  previous  will,  has  the  efTect 
to   republish  the   will,   as  modified   by   the   codicil. 

History:      Enacted  March   21,   1S72. 

§  1288.  NUNCUPATIVE  WILL,  HOW  TO  BE  EXE- 
CUTED. A  nuncupative  will  is  not  required  to  be  in  writ- 
ing, nor  to  be  declared  or  attested  with  any  formalities. 

History:     Enacted  March  21,  1872. 

§  1289.  REQUISITES  OF  A  VALID  NUNCUPATIVE 
WILL.  To  make  a  nuncupative  will  valid,  and  to  entitle  it 
to  be  admitted  to  probate,  the  following  requisites  must  bo 
observed: 

1.  The  estate  bequeathed  must  not  exceed  in  value  the  sum 
of    one    thousand    dollars. 

2.  It  must  be  proved  by  two  witnesses  who  were  present 
at  the  making  thereof,  one  of  whom  was  asked  by  the  testa- 
tor, at  the  time,  to  bear  witness  that  such  was  his  will,  or  to 
that   efifect. 

3.  The  decedent  must,  at  the  time,  have  been  in  actual  mili- 
tary service  in  the  field,  or  doing  duty  on  shipboard  at  sea, 

523 


§§1290-1292  CIVIL  CODE.  [Div.II.Pt.IV. 

and  in  either  case  in  actual  contemplation,  fear,  or  peril  of 
death,  or  the  decedent  must  have  been,  at  the  time,  in  ex- 
pectation of  immediate  death  from  an  injury  received  the 
same   day. 

History:  Enacted  March  21,  1872.  founded  upon  §  7  Act  April 
10,  1S50,  Stats.  1850,  p.  177;  amended  March  30,  1874,  Code  Amdts. 
1873-4,   p.   233. 


§  1290.     PROOF      OF      NUNCUPATIVE      WILLS.     No 

proof  must  be  received  of  any  nuncupative  will,  unless  it  is 
offered  within  six  months  after  speaking  the  testamentary 
words,  nor  unless  the  words,  or  the  substance  thereof,  were 
reduced  to  writing  within  thirty  days  after  they  were  spoken. 

History:     Enacted  March   21,   1S72,  founded  upon   §  8  Act  April 
10,    1850,   Stat.s.    1850,  p.    178. 


§  1291.     PROBATE    OF    NUNCUPATIVE    WILLS.     No 

probate  of  any  nuncupative  will  must  be  granted  for  fourteen 
days  after  the  death  of  the  testator,  nor  must  any  nuncupative 
will  be  at  any  time  proved,  unless  the  testamentary  words, 
or  the  substance  thereof,  be  first  committed  to  writing,  and 
process  issued  to  call  in  the  widow,  or  other  persons  inter- 
ested, to  contest  the  probate  of  such  will,  if  they  think 
proper. 

History:     Enacted  March   21,  1872,  founded  upon   §  9  Act  April 
10,    1850,    Stats.    1850,   p.    178. 


§  1292.  WRITTEN  WILL,  HOW  REVOKED.  Except 
in  the  cases  in  this  chapter  mentioned,  no  written  will,  nor 
any  part  thereof,  can  be  revoked  or  altered  otherwise  than: 

1.  By  a  written  will,  or  other  writing  of  the  testator,  de- 
claring such  revocation  or  alteration,  and  executed  with  the 
same  formalities  with  which  a  will  should  be  executed  by 
such    testator;    or, 

524 


Tit. VI, ch. I.]        REVOCATION— EVIDENCE    OF.         §§  1293-1297 

2.  By  being  burnt,  torn,  canceled,  obliterated,  or  destroyed, 
with  the  intent  and  for  purpose  of  revoking  the  same,  by  the 
testator  himself,  or  by  some  person  in  his  presence  and  by 
his   direction. 

History:     Enacted  March  21,   1872. 

§  1293.  EVIDENCE  OF  REVOCATION.  When  a  will 
is  canceled  or  destroyed  by  any  other  person  than  the  testa- 
tor, the  direction  of  the  testator,  and  the  fact  of  such  injury 
or  destruction,  must  be  proved  by  two  witnesses. 

Hi-story:  Enacted  March  21,  1872,  founded  upon  §  10  Act 
April   10,  1850,  Stats.   1850,  p.   178. 

§  1294.  REVOCATION  BY  OBLITERATION  ON 
FACE  OF  WILL  [repealed]. 

History:  Enacted  March  21,  1872,  repealed  March  30,  1874,. 
Code  Amdts.   1873-4,  p.   233. 

§  1295.  REVOCATION  OF  DUPLICATE.  The  revoca- 
tion of  a  will,  executed  in  duplicate,  may  be  made  by  revok- 
ing one  of  the  duplicates. 

History:      Enacted  March  21,   1872. 

§  1296.     REVOCATION    BY    SUBSEQUENT  WILL.     A 

prior  will  is  not  revoked  by  a  subsequent  will,  unless  the  lat- 
ter contains  an  express  revocation,  or  provisions  wholly  in- 
consistent with  the  terms  of  the  former  will;  but  in  other 
cases  the  prior  will  remains  effectual  so  far  as  consistent 
with   the  provisions  of  the   subsequent  will. 

History:     Enacted  March  21,   1872. 


§  1297.  ANTECEDENT  NOT  REVIVED  BY  REVOCA- 
TION OF  SUBSEQUENT  WILL.  If,  after  making  a  will, 
the  testator  duly  makes  and  executes  a  second  will,  the  de- 

525 


§§1298-1300  CIVIL  CODE.  |  Div.II,Pt.IV. 

struction,  cancelation,  or  revocation  of  sucli  second  will  does 
not  revive  the  first  will,  unless  it  appears  by  the  terms  of  such 
revocation  that  it  was  the  intention  to  revive  and  give  effect 
to  the  first  will,  or  unless,  after  such  destruction,  cancelation, 
or  revocation,  the  first  will  is  duly  republished. 

History:  Enacted  March  21,  1S72,  founded  upon  §  11  Act 
April   10,   1S50,   Stats.   1850,  p.   178.  • 

§  1298.  REVOCATION  BY  MARRIAGE  AND  BIRTH 
OF  ISSUE.  If,  after  having  made  a  will,  the  testator  mar- 
ries, and  has  issue  of  such  marriage,  born  either  in  his  life- 
time or  after  his  death,  and  the  wife  or  issue  survives  him, 
the  will  is  revoked,  unless  provision  has  been  made  for  such 
issue  by  some  settlement,  or  unless  such  issue  are  provided 
for  in  the  will,  or  in  such  way  mentioned  therein  as  to  show 
an  intention  not  to  make  such  provision;  and  no  other  evi- 
dence to  rebut  the  presumption  of  such  revocation  can  be 
received. 

History:      Enacted  March  21,   1872'. 

§  1299.  EFFECT  OF  MARRIAGE  OF  A  MAN  ON  HIS 
WILL.  If,  after  making  a  will,  the  testator  marries,  and  the 
wife  survives  the  testator,  the  will  is  revoked,  unless  pro- 
vision has  been  made  for  her  bj'  marriage  contract,  or  un- 
less she  is  provided  for  in  the  will,  or  in  such  way  men- 
tioned therein  as  to  show  an  intention  not  to  make  such 
provision;  and  no  other  evidence  to  rebut  the  presumption 
of  revocation  must  be  received. 

History:  Enacted  March  21,  1872.  founded  upon  §  12  Act 
April   10,   1850,   Stats.    1850,  p.   178. 

§  1300.  EFFECT  OF  A  MARRIAGE  OF  A  WOMAN 
ON  HER  WILL.  A  will,  executed  by  a  woman,  is  revoked 
by  her  subsequent  marriage,  and  is  not  revived  by  the  death 
of  her   husband. 

526 


Tit.VI,ch.I.]  REVOCATION— WHAT  NOT.  §§  1301-13U4 

History:  Enacted  March  21,  1872,  founded  upon  §  13  Act 
April  10,  1.850,  Stats.  1850,  p.  178;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  402,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   21,    1905,  Stats,   and  Amdts.    1905,   p.    606. 

§  1301.     CONTRACT  OF  SALE  NOT  A  REVOCATION. 

An  agreement  made  b)'  a  testator,  for  the  sale  or  transfer 
of  property  disposed  of  by  a  will  previously  made,  does  not 
revoke  such  disposal;  but  the  property  passes  by  the  will, 
subject  to  the  same  remedies  on  the  testator's  agreement,  for 
a  specific  performance  or  .otherwise  against  the  devisees  or 
legatees,  as  might  be  had  against  the  testator's  successors, 
if  the  same  had  passed  by  succession. 

Hlstorj-:  Enacted  March  21,  1872,  founded  upon  §  14  Act 
April  10,  18150,  Stats.   1850,  p.  178. 

§  1302.  MORTGAGE  NOT  A  REVOCATION  OF 
WILL.  A  charge  or  encumbrance  upon  any  estate,  for  the 
purpose  of  securing  the  payment  of  money  or  the  perform- 
ance of  any  covenant  or  agreement,  is  not  a  revocation  of 
any  will  relating  to  the  same  estate  which  was  previously 
executed;  but  the  devise  and  legacies  therein  contained  must 
pass,  subject  to  such  charge  or  encumbrance. 

History:  Enacted  March  21,  1872,  founded  upon  §  15  Aol 
April  10,  1850,  Stats.   1850,  p.  178. 

§  1303.  CONVEYANCE,  WHEN  NOT  A  REVOCA- 
TION. A  conveyance,  settlement,  or  other  act  of  a  testator, 
by  which  his  interest  in  a  thing  previously  disposed  of  by  his 
will  is  altered,  but  not  wholly  devested,  is  not  a  revocation; 
but  the  will  passes  the  property  which  would  otherwise  de- 
volve   by  succession. 

History:      Enacted  March   21,   1872. 

§  1304.     [SAME.]     WHEN  IT  IS  A  REVOCATION.     If 

the  instrument  by  which  an  alteration  is  made  in  the  testa- 

527 


§§1305-1307  .         CIVIL  CODE.  [Div.II,Pt.IV. 

tor's  interest  in  a  thing  previously  disposed  of  by  his  will 
expresses  his  intent  that  it  shall  be  a  revocation,  or  if  it 
contains  provisions  wholly  inconsistent  with  the  terms  and 
nature  of  the  testamentary  disposition,  it  operates  as  a  revo- 
cation thereof,  unless  such  inconsistent  provisions  depend 
on  a  condition  or  contingency  by  reason  of  which  they  do 
not  take  efifect. 

History:      Enacted  March  21,   1872. 

§  1305.  REVOCATION  OF  CODICILS.  The  revocation 
of  a  will  revokes  all  its  codicils.  ■ 

History:      Enacted  March  21,   1872. 

§  1306.  AFTER-BORN  CHILD,  UNPROVIDED  FOR, 
TO  SUCCEED.  Whenever  a  testator  has  a  child  born  after 
the  making  of  his  will,  either  in  his  lifetime  or  after  his 
death,  and  dies  leaving  such  child  unprovided  for  by  any  set- 
tlement, and  neither  provided  for  nor  in  any  way  mentioned 
in  his  will,  the  child  succeeds  to  the  same  portion  of  the  tes- 
tator's real  and  personal  property  that  he  would  have  suc- 
ceeded to  if  the  testator  had  died  intestate.  But  such  suc- 
cession does  not  impair  or  affect  the  validity  of  any  sale  of 
property  made  by  authority  of  such  will  in  accordance  with 
the  provisions  of  section  fifteen  hundred  and  sixty-one  of 
the   Code  of  Civil  Procedure. 

History:  Enacted  March  21,  1872,  founded  upon  §  16  Act 
April  10,  1850,  Stats.  1850,  p.  178;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  402.  held 
unconstitut^ional,  see  history,  §  4  ante;  amendment  re-enacted 
March   21,   1905,   Stats,   and  Amdts.    1905,   p.    606. 

§1307.  CHILDREN  OR  ISSUE  OF  CHILDREN  OF 
TESTATOR  UNPROVIDED  FOR  BY  HIS  WILL  [TO 
SUCCEED].  When  any  testator  omits  to  provide  in  his 
will  for  any  of  his  children,  or  for  the  issue  of  any  deceased 
child,  unless  it  appears  that  such  omission  w^as  intentional, 
such  child,  or  the  issue  of  such  child,  has  the  same  share  in 

528 


Tit.VI,ch.I.]        AFTER-BORN   CHILD,    SHARE.         §§  1308,  1309 

the  estate  of  the  testator  as  if  he  had  died  intestate,  and 
succeeds  thereto  as  provided  in  the  preceding  section.  But 
such  succession  does  not  impair  or  affect  the  validity  of  any 
sale  of  property  made  by  authority  of  such  will  in  accordance 
with  the  provisions  of  section  fifteen  hundred  and  sixty-one 
of  the  Code  of  Civil  Procedure. 

History:  Enacted  March  21,  1872,  founded  upon  §  17  Act 
April  10,  1850,  Stats.  1850,  p.  178;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  403,  held  un- 
constitutional, see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.   1905,  p.   606. 

§1308.  SHARE  OF  AFTER-BORN  CHILD,  OUT  OF 
WHAT  PART  OF  ESTATE  TO  BE  PAID.  When  any 
share  of  the  estate  of  a  testator  is  assigned  to  a  child  born 
after  the  making  of  a  will,  or  to  a  child,  or  the  issue  of  a 
child,  omitted  in  the  will,  as  hereinbefore  mentioned,  the 
same  must  first  be  taken  from  the  estate  not  disposed  of  by 
the  will,  if  any;  if  that  is  not  sufficient,  so  much  as  may  be 
necessary  must  be  taken  from  all  the  devisees  or  legatees,  in 
proportion  to  the  value  they  may  respectively  receive  under 
the  will,  unless  the  obvious  intention  of  the  testator  in  re- 
lation to  some  specific  devise  or  bequest,  or  other  provision 
in  the  will,  would  thereby  be  defeated;  in  such  case,  such 
specific  devise,  legacy,  or  provision,  may  be  exempted  from 
such  apportionment,  and  a  different  apportionment,  consist- 
ent with  the  intention  of  the   testator,  may  be  adopted. 

History:  Enacted  March  21,  1872,  founded  upon  §18  Act 
April   10,   1850,   Stats.   1850,  p.   178. 

§  1309.  ADVANCEMENT  DURING  LIFETIME  OF 
TESTATOR.  If  such  children,  or  their  descendants,  so  pro- 
vided for,  had  an  equal  proportion  of  the  testator's  estate 
bestowed  on  them  in  the  testator's  lifetime,  by  way  of  ad- 
vancement, they  take  nothing  in  virtue  of  the  provisions  of 
the  three  preceding  sections. 

History:  Enacted  March  21,  1872,  founded  upon  §  19  Act 
April   10,   1850,   Stats.   1850,  p.   179. 

529 


§§1310-1312  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1310.  ON  DEATH  OF  DEVISEE,  BEING  RELA- 
TION OF  TESTATOR,  IN  LIFETIME  OF  TESTATOR, 
LEAVING  LINEAL  DESCENDANTS  [THEY  SUC- 
CEED]. When  any  estate  is  devised  or  bequeathed  to  any 
child,  or  other  relation  of  the  testator,  and  the  devisee  or 
legatee  dies  before  the  testator,  leaving  lineal  descendants, 
such  descendants  take  the  estate  so  given  by  the  will,  in  the 
same  manner  as  the  devisee  or  legatee  would  have  done  had 
he  survived  the  testator. 

History:  Enacted  March  21,  1872,  founded  upon  §  20  Act 
April  10,  1850,  Stats.  1850,  p.  179;  amended  March  18,  1905, 
Stats,   and  Amdts.   1905,  p.    150. 


§  1311.     DEVISES     OF     LAND,    HOW    CONSTRUED. 

Every  devise  of  land  in  any  will  conveys  all  the  estate  ot 
the  devisor  therein,  which  he  could  lawfully  devise,  unless 
it  clearly  appears  by  the  will  that  he  intended  to  convey  a 
less  estate. 

History:       Enacted    March    21,    1872,    founded    upon     §  21    Act 
April   10,   1850,   Stats.   1850,  p.   179. 


§  1312.  WILLS  PASS  ESTATE  SUBSEQUENTLY  AC- 
QUIRED. Any  estate,  right,  or  interest  in  lands  acquired 
by  the  testator  after  the  making  of  his  will,  passes  thereby 
and  in  like  manner  as  if  title  thereto  was  vested  in  him  at 
the  time  of  making  the  will,  unless  the  contrary  manifestly 
appears  by  the  will  to  have  been  the  intention  of  the  testator. 
Every  will  made  in  express  terms,  devising,  or  in  any  other 
terms  denoting  the  intent  of  the  testator  to  devise  all  the 
real  estate  of  such  testator,  passes  all  the  real  estate  which 
such  testator  was  entitled  to  devise  at  the  time  of  his  de- 
cease. 

History:  Enacted  March  21,  1872,  founded  upon  §  22  Act 
April  10,  1S50,  Stats.  1850,  p  179;  amended  March  30,  1S74,  Code 
Amdts.    1873-4,    p.    233. 

530 


Tit.VI,ch.I.]  CHARITABLE   BEQUESTS.  §  I313 

§  1313.  CHARITABLE,  ETC.,  BEQUESTS.  LIMITA- 
TION AS  TO  TIME  AND  AMOUNT.  No  estate,  real  or 
personal,  shall  be  bequeathed  or  devised  to  any  charitable 
or  benevolent  society  or  corporation,  or  to  any  person  or 
persons"  in  trust  for  charitable  uses,  except  the  same  be  done 
by  will  duly  executed  at  least  thirty  days  before  the  decease' 
of  the  testator;  and  if  so  made,  at  least  thirty  days  prior  to 
such  death  sucli  devise  or  legacy  and  eacli  of  them  sliall  be 
valid;  provided,  that  no  such  devises  or  bequests  shall  col- 
lectively exceed  one-third  of  the  estate  of  the  testator,  leav- 
ing legal  heirs,  and  in  such  case  a  pro  rata  deduction  from 
such  devises  or  bequests  shall  be  made  so  as  to  reduce  the 
aggregate  thereof  to  one-third  of  such  estate;  and  all  dis- 
positions of  property  made  contrary  hereto  shall  be  void,  and 
go  to  the  residuary  legatee-  or  devisee,  next  of  kin,  or  heirs, 
according  to   law. 

History:  Enacted  March  IS,  1874,  Code  Amdts.  1873-4,  p.  *276. 
Ill   force  March   18,   1874. 


531 


§1317  CIVIL    CODE.  [Div.II,Pt.IV. 


CHAPTER  II. 

INTERPRETATION    OP    WILLS,    AND    EFFECT    OF    VARIOUS 
PROVISIONS. 

§  1317.  Testator's    intention    to    be    carried    out. 

§  1318.  Intention  to  be  ascertained   from   tlie  will. 

§  1319.  Rules   of   interpretation. 

§  1320.  Several  instruments  are  to  be  taken  together. 

§  1321.  Harmonizing-  various  parts. 

§  1322.  In  what  case  devise  not  affected. 

§  1323.  When   ambiguous   or  doubtful. 

§  1324.  Words  taken  in  ordinary  sense. 

§  1325.  Words    to    receive   an    operative    construction. 

§  1326.  Intestacy    to   be   avoided. 

§  1327.  Effect  of  technical  words. 

§  1328.  Technical   words   not   necessary. 

§  1329.  Certain  words  not  necessary  to  pass  a  fee.         ' 

§  1330.  Power  to  devise,  how  executed  by  terms  of  will. 

§  1331.  Devise   or  bequest   of   all   real   or   all   personal   property, 

or  both. 

§  1332.  Residuary  clause. 

§  1333.  Same.      [Bequest    of    residue,    effect.] 

§  1334.  "Heirs,"     "relatives,"    "issue,"    "descendants,"    etc. 

§  1335.  Words  of  donation  and  of  limitation. 

§  1336.  To  what  time  words  refer. 

§  1337.  Devise  or  bequest  to  a  class. 

§  1338.  When  conversion   takes  effect. 

§  1339.  When    child    born    after    testator's    death    takes    under 

will. 

§  1340.  Mistakes  and  omissions. 

§  1341.  When    devises    and    bequests    vest. 

1  1342.  When  cannot  be  divested. 

§  1343.  Death    of   devisee    or   legatee. 

§  1344.  Interests   in   remainder  are   not   affected. 

§  1345.  Conditional   devises  and  bequests. 

§  1346.  Condition  precedent,  what. 

■§  1347.  Effect   of  condition  precedent. 

§  1348.  Conditions  precedent,   when   deemed  performed. 

§  1349.  Conditions    subsequent,   what. 

§  1350.  Devisees,   etc.,  take  as  tenants  in  common. 

§  1351.  Advd,ncements,  when  ademptions. 

532 


Tit. VI, ch. II.]     INTERPRETATION-— RULES  FOR.     §§1317-1322 

§  1317.     TESTATOR'S  INTENTION  TO  BE  CARRIED 

OUT.  A  will  is  to  be  construed  according  to  the  intention 
of  the  testator.  Where  his  intention  cannot  have  eflfect  to  its 
full  extent,  it  must  have  effect  as  far  as  possible. 

Hi.story:     Enacted  March   21,   1S72. 

§  1318.  INTENTION  TO  BE  ASCERTAINED  FROM 
THE  WILL.  In  case  of  uncertainty  arising  upon  the  face 
of  a  will,  as  to  the  application  of  any  of  its  provisions,  the 
testator's  intention  is  to  be  ascertained  from  the  words  of 
the  will,  taking  into  view  the  circumstances  under  which  it 
was  made,  exclusive  of  his  oral  declarations. 

History:      Enacted  March   21,   1S72. 

§  1319.  RULES  OF  INTERPRETATION.  In  interpret- 
ing a  will,  subject  to  the  law  of  this  state,  the  rules  pre- 
scribed by  the  following  sections  of  this  chapter  are  to  be 
observed,  unless  an  intention  to  the  contrary  clearly  appears. 

History:     Enacted  March   21,   1872. 

§  1320.  SEVERAL  INSTRUMENTS  ARE  TO  BE  TAK- 
EN TOGETHER.  Several  testamentary  instruments,  exe- 
cuted by  the  same  testator,  are  to  be  taken  and  construed 
together  as  one  instrument. 

Historj':     Enacted  March   21,   1872. 

§  1321.     HARMONIZING    VARIOUS    PARTS.     All    the 

parts  of  a  will  are  to  be  construed  in  relation  to  each  other, 
and  so  as,  if  possible,  to  form  one  consistent  whole;  but 
where  several  parts  are  absolutely  irreconcilable,  the  latter 
must^  prevail. 

History:     Enacted  March  21,  1872. 

§  1322.     IN  WHAT   CASE   DEVISE   NOT  AFFECTED. 

A  clear  and  distinct  devise  or  bequest  cannot  be  affected  by 

533 


§§1323-1327  CIVIL  CODE.  [Div.II,Pt.] V. 

any  reasons  assigned  therefor,  or  by  any  other  words  not 
equally  clear  and  distinct,  or  by  inference  or  argument  from 
other  parts  of  the  will,  or  by  an  inaccurate  recital  of  or  ref- 
erence to  its  contents  in  another  part  of  the  will. 

History:     Enacted  March  21,   1872. 

§  1323.     WHEN        AMBIGUOUS        OR       DOUBTFUL. 

Where  the  meaning  of  any  part  of  a  will  is  ambiguous  or 
doubtful,  it  may  be  explained  by  any  reference  thereto,  or 
recital   thereof,   in   another  part   of   the   will. 

Hi.story:     Enacted  March   21,   1872. 

§  1324.     WORDS  TAKEN  IN  ORDINARY  SENSE.     The 

words  of  a  will  are  to  be  taken  in  their  ordinary  and  gram- 
matical sense,  unless  a  clear  intention  to  use  them  in  an- 
other sense  can  be  collected,  and  that  other  can  be  ascer- 
tained. 

History:     Enacted  March  21,   1872. 

§  1325.     WORDS     TO      RECEIVE     AN      OPERATIVE 

CONSTRUCTION.  The  words  of  a  will  are  to  receive  an 
interpretation  which  will  give  to  every  expression  some  ef- 
fect, rather  than  one  which  will  render  any  of  the  expres- 
sions inoperative. 

Historj":     Enacted  March  21,   1872. 

§1326.     INTESTACY     TO     BE     AVOIDED.      Of     two 

modes  of  interpreting  a  will,  that  is  to  be  preferred  which 
will  prevent  a  total  intestacy. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p."  403, 
held   unconstitutional,   see  history,   §  4  ante. 

§  1327.  EFFECT  OF  TECHNICAL  WORDS.  Technical 
words  in  a  will  are  to  be  taken  in  their  technical  sense,  unless 

534 


Tit.VI,ch.]I.]        INTERPRETATION— WORDS.  §§1328-1331 

the  context  clearly  indicates  a  contrary  intention,  or  unless 
it  satisfactorily  appears  that  the  will  was  drawn  solely  by  the 
testator,  and  that  he  was  unacquainted  with  such  technical 
sense. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  403, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p.   606. 

§  1328.     TECHNICAL      WORDS      NOT      NECESSARY, 

Technical  words  are  not  necessary  to  give  effect  to  any 
species  of  disposition  by  a  will. 

History:      Enacted  March  21,   1872. 

§  1329.  CERTAIN  WORDS  NOT  NECESSARY  TO 
PASS  A  FEE.  The  term  "heirs,"  or  other  words  of  inherit- 
ance, are  not  requisite  to  devise  a  fee,  and  a  devise  of  real 
property  passes  all  the  estate  of  the  testator,  unless  other- 
wise limited. 

History:      Enacted  March  21,   1872. 

§  1330.  POWER  TO  DEVISE,  HOW  EXECUTED  BY 
TERMS  OF  WILL.  Real  or  personal  property  embraced 
in  a  power  to  devise,  passes  by  a  will  purporting  to  devise 
all  the  real  or  personal  property  of  the  testator. 

History:      Enacted  March  21,   1872. 

§  1331.  DEVISE  OR  BEQUEST  OF  ALL  REAL  OR 
ALL  PERSONAL  PROPERTY,  OR  BOTH.  A  devise  or 
bequest  of  all  the  testator's  real  or  personal  property,  in  ex- 
press terms,  or  in  any  other  terms  denoting  his  intent  to  dis- 
pose of  all  his  real  or  personal  property,  passes  all  the  real 
or  personal  property  which  he  was  entitled  to  dispose  of  by 
will  at  the  time  of  his  death. 

History:     Enacted  March  21,  1872. 

535 


§§  1332-1335  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1332.  RESIDUARY  CLAUSES.  A  devise  of  the  resi- 
due of  the  testator's  real  property  passes  all  the  real  property 
which  he  was  entitled  to  devise  at  the  time  of  his  death,  not 
otherwise  efifectually  devised  by  his  will. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1S73-4,   p.    234. 


§  1333.     SAME.     [BEQUEST  OF  RESIDUE,  EFFECT.] 

A  bequest  of  the  residue  of  the  testator's  personal  property, 
passes  all  the  personal  property  which  he  was  entitled  to  be- 
queath at  the  time  of  his  death,  not  otherwise  effectually  be- 
queathed by  his  will. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1873-4,   p.    234. 

§  1334.  "HEIRS,"  "RELATIVES,"  "ISSUE,"  "DE- 
SCENDANTS," ETC.  A  testamentary  disposition  to 
'"heirs,"  "relations,"  "nearest  relations,"  "representatives," 
"legal  representatives,"  or  "personal  representatives,"  or 
"family,"  "issue,"  "descendants,"  "nearest"  or  "next  of  kin," 
of  any  person,  without  other  words  of  qualification,  and  when 
the  terms  are  used  as  words  of  donation,  and  not  of  limita- 
tion, vests  the  property  in  those  who  would  be  entitled  to 
succeed  to  the  property  of  such  person,  according  to  the  pro- 
visions of  the  title  on  succession,  in  this  code. 

History:     Enacted  March  21,   1872. 

§  1335.  WORDS  OF  DONATION  AND  OF  LIMITA- 
TION. The  terms  mentioned  in  the  last  section  are  used  as 
words  of  donation,  and  not  of  limitation,  when  the  property 
is  given  to  the  person  so  designated,  directly,  and  not  as  a 
qualification  of  an  estate  given  to  the  ancestor  of  such  per- 
son. 

History:     Enacted  March  21,   1872. 

536 


Tit.VI,ch.II.]  DEVISE    TO   A   CLASS.  §§1336-1340 

§  1336.  TO  WHAT  TIME  WORDS  REFER.  Words  in 
a  will  referring  to  death  or  survivorship,  simply,  relate  to  the 
time  of  the  testator's  death,  unless  possession  is  actually 
postponed,  when  they  must  be  referred  to  the  time  of  pos- 
session. 

History:     Enacted  March  21,   1872. 

§  1337.  DEVISE  OR  BEQUEST  TO  A  CLASS.  A  testa- 
mentary disposition  to  a  class  includes  every  person  answer- 
mg  the  description  at  the  testator's  death;  but  when  the 
possession  is  postponed  to  a  future  period,  it  includes  also 
all  persons  coming  within  ihe  description  before  the  time 
to  which  possesion  is  postponed. 

History:     Enacted  March  21,   1872. 

§  1338.     WHEN  CONVERSION  TAKES  EFFECT.  When 
a   will   directs   the   conversion    of   real   property   into   money, 
such  property  and  all  its  proceeds  must  be  deemed  personal 
property  from  the  time  of  the  testator's  death. 
History:     Enacted  March  21,   1872. 

§  1339.  WHEN  CHILD  BORN  AFTER  TESTATOR'S 
DEATH  TAKES  UNDER  WILL.  A  child  conceived  before, 
but  not  born  until  after  a  testator's  death,  or  any  other  period 
when  a  disposition  to  a  class  vests  in  right  or  in  possession, 
takes,  if  answering  to  the  description  of  the  class. 
History:     Enacted  March  21,   1872. 

§  1340.  MISTAKES  AND  OMISSIONS.  When,  apply- 
ing a  will,  it  is  found  that  there  is  an  imperfect  description, 
or  that  no  person  or  property  exactly  answers  the  descrip- 
tion, mistakes  and  omissions  must  be  corrected,  if  the  error 
appears  from  the  context  of  the  will  or  from  extrinsic  evi- 
dence; but  evidence  of  the  declarations  of  the  testator  as  to 
his  intentions  cannot  be  received. 

Hi.story:     Enacted  March  21,   1872. 

537 


§§1341-1345  CIVIL  CODE/  [Div.II.Pt.IV. 

§  1341.     WHEN     DEVISES     AND     BEQUESTS     VEST. 

Testamentary  dispositions,  including  devises  and  bequests  to 
a  person  on  attaining  majority,  are  presumed  to  vest  at  the 
testator's  death. 

History:     Enacted  March  21,   1872. 


§  1342.  WHEN  CANNOT  BE  DEVESTED.  A  testa- 
mentary disposition,  when  vested,  cannot  be  devested  unless 
upon  the  occurrence  of  the  precise  contingency  prescribed 
by  the  testator  for  that  purpose. 

History:     Enacted  March  21,   1872. 

§  1343.     DEATH    OF    DEVISEE    OR    LEGATEE.      If    a 

devisee  or  legatee  dies  during  the  lifetime  of  the  testator, 
the  testamentary  disposition  to  him  fails^  unless  an  intention 
appears  to  substitute  some  other  in  his  place,  except  as  pro- 
vided in  section  thirteen  hundred  and  ten. 

History:  Enacted  March  21,  1872;  amended  March  30.  1874, 
Code  Anidts.  1873-4,  p.  234;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  403,  held  un- 
constitutional,   see    history.    §  4    ante. 


§  1344.  INTERESTS  IN  REMAINDER  ARE  NOT  AF- 
FECTED. The  death  of  a  devisee  or  legatee  of  a  limited 
interest  before  the  testator's  death  does  not  defeat  the  in- 
terests of  persons  in  remainder,  who  survive  the  testator. 

Histitry:     Enacted  March   21,   1872. 

§1345.     CONDITIONAL    DEVISES    AND    BEQUESTS. 

A  conditional  disposition  is  one  which  depends  upon  the 
occurrence  of  some  uncertain  event,  by  which  it  is  either  to 
take  effect  or  be  defeated. 

History:     Enacted  March  21,   1872. 
538 


Tit.VI,ch.II.]  CONDTTIONS— EFFECT   OF.  §§  1346-1350 

§  1346.  CONDITION  PRECEDENT,  WHAT.  A  condi- 
tion precedenv  in  a  will  is  one  wliich  is  required  to  be  ful- 
filled  before    a   particular   disposition    takes   effect. 

History:      Enacted  March   21,   1872. 


§  1347.     EFFECT      OF      CONDITION      PRECEDENT. 

Where  a  testamentary  disposition  is  made  upon  a  condition 
precedent,  nothing  vests  until  the  condition  is  fulfilled,  ex- 
cept where  such  fulfilment  is  impossible,  in  which  case  the 
disposition  vests,  unless  the  condition  was  the  sole  motive 
thereof,  and  the  impossibility  was  unknown  to  the  testator, 
or  arose  from  an  unavoidable  event  subsecpjent  to  the  exe- 
cution  of   the   will. 

History:     Enacted  March   21,   1872. 


§  1348.  CONDITIONS  PRECEDENT,  WHEN  DEEM- 
ED PERFORMED.  A  condition  precedent  in  a  will  is  to 
be  deemed  performed  when  the  testator's  intention  has  been 
su1)stantially,  though  not  literally,  complied  with. 

History:      Enacted  March   21,   1872. 


§  1349.  CONDITIONS  SUBSEQUENT,  WHAT.  A  con- 
dition subsequent  is  where  an  estate  or  interest  is  so  given 
as  to  vest  immediately,  subject  only  to  be  devested  by  some 
subsequent  act  or  event. 

History:      Enacted  March   21,   1872. 


§  1350.  DEVISEES,  ETC.,  TAKE  AS  TENANTS  IN 
COMMON.  A  devise  or  legacy  given  to  more  than  one  per- 
son vests  in  them  as  owners  in  common. 

History:     Enacted  March   21,   1872. 

539 


§  1351  CIVIL    CODE.  [Div.II.Pt.IV. 

§1351.     ADVANCEMENTS,      WHEN      ADEMPTIONS. 

Advancements  or  gifts  are  not  to  be  taken  as  ademptions  of 
general  legacies,  unless  such  intention  is  expressed  by  the 
testator  in  writing. 

History:     Enacted  March  21,   1S72. 


540 


Tit. VI, ch. III.]    DESIGNATION  OF   LEGACIES.  §  I357 

CHAPTER  III. 

GENERAL   PROVISIONS. 

§  1357.  Nature   and    designations    of    legacies. 

§  1358.  Estates   cliargeable. 

§  1359.  Order  of  resort  to  estate   for  debts. 

§1360.  Same.      [For  legacies.] 

§  1361.  Same.      [Legacies   to  kindred.] 

§  1362.  Abatement. 

§  1363.  Specific    devises   and   legacies. 

§  1364.  Heir's    conveyance    good,    unless    will    is    proved    within 

four  years. 

§  1365.  Possession  of  legatees. 

§  1366.  Bequest  of  interest. 

§  1367.  Satisfaction. 

§  1368.  Legacies,  when  due. 

§  1369.  Interest. 

§  1370.  Construction  of  these  rules. 

§  1371.  Executor   according  to  the  tenor. 

§  1372.  Power   to  appoint  is  invalid. 

§  1373.  Executor  not  to  act  till  qualified. 

§  1374.  Provisions    as   to    revocations. 

§  1375.  Execution   and   construction   of  prior  wills   not  affected. 

§  1376.  Law  governing  validity  and  interpretation  of  wills. 

§  1377.  Liability   of  beneficiaries  for  testator's  obligations. 

§  1357.  NATURE  AND  DESIGNATION  OF  LEGA- 
CIES. Legacies  are  distinguished  and  designated,  accord- 
ing to   their  nature,  as  follows: 

1.  [Specific  legacy.]  A  legacy  of  a  particular  thing,  speci- 
fied and  distinguished  from  all  others  of  the  same  kind  be- 
longing to  the  testator,  is  specific;  if  such  legacy  fails,  resort 
cannot  be  had  to  the  other  property  of  the  testator; 

2.  [Demonstrative  legacy.]  A  legacy  is  demonstrative 
when  the  particular  fund  or  personal  property  is  pointed  out 
from  which  it  is  to  be  taken  or  paid;  if  such  fund  or  prop- 
erty fails,  in  whole  or  in  part,  resort  may  be  had  to  the  gen- 
eral assets,  as  in  case  of  a  general  legacy; 

541 


§§1358,1359  CIVIL  CODE.  [Div.II.Pt.IV. 

3.  [Annuities.]  An  annuity  is  a  bequest  of  certain  speci- 
fied sums  periodically;  if  the  fund  or  property  out  of  which 
they  are  payable  fails,  resort  may  be  had  to  the  general  as- 
sets, as  in  case  of  a  general  legacy; 

4.  [Residuary  legacy.]  A  residuary  legacy  embraces  only 
that  which  remains  after  all  the  bequests  of  the  will  are 
discharged; 

5.  [General  legacy.]  All  other  legacies  are  general  lega- 
cies. 

History:     Enacted  March   21,  1872. 

§  1358.  ESTATES  CHARGEABLE.  When  a  person  dies 
intestate,  all  his  property,  real  and  personal,  without  any 
distinction  between  them,  is  chargeable  with  the  payment  of 
his  debts,  except  as  otherwise  provided  in  this  code  and  the 
Code  of  Civil  Procedure. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    234. 

§  1359.  ORDER  OF  RESORT  TO  ESTATE  FOR 
DEBTS.  The  property  of  a  testator,  except  as  otherwise 
specially  provided  in  this  code  and  the  Code  of  Civil  Pro- 
cedure, must  be  resorted  to  for  the  payment  of  debts,  in 
the  following  order: 

1.  The  property  which  is  expressly  appropriated  by  the 
will  for  the  payment  of  the  debts; 

2.  Property  not  disposed  of  by  the  will; 

3.  Property  which  is  devised  or  bequeathed  to  a  residuary 
legatee; 

4.  Property  which  is  not  specifically  devised  or  bequeathed; 
and, 

5.  All  other  property  ratably.  Before  any  debts  are  paid, 
the  expenses  of  the  administration,  and  the  allowance  to  the 
family,  must  be  paid   or  provided  for. 

History:  Enacted  March  21.  1S72;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   pp.    234-235. 

542 


Tit.VI,ch.III.]         LEGACIES— ABATEMENT.  §§  1360-1364 

§1360.  SAME.  [FOR  LEGACIES.]  The  property  of  a 
testator,  except  as  otherwise  specially  provided  in  this  code 
and  the  Code  of  Civil  Procedure,  must  be  resorted  to  for  the 
payment  of  legacies,  in  the  following  order: 

1.  The  property  which  is  expressly  appropriated  by  the 
will  for  the  payment  of  the  legacies. 

2.  Property  not  disposed  of  by  the  will. 

3.  Property  which  is  devised  or  bequeathed  to  a  residuary 
legatee. 

4.  Property   which   is   specifically   devised  or  bequeathed. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code    Amdts.    1873-4,    p.    235. 

§  1361.  SAME.  [LEGACIES  TO  KINDRED.]  Lega- 
cies to  husband,  widow,  or  kindred  of  any  class  are  charge- 
able only  after  legacies  to  persons  not  related  to  the  tes- 
tator. 

History:      Enacted  March   21,   1872. 

§  1362.  ABATEMENT.  Abatement  takes  place  in  any 
class  only  as  between  legacies  of  that  class,  unless  a  diflferent 
intention   is  expressed  in   the  will. 

History.      Enacted  March   21,  1872. 

§  1363.     SPECIFIC    DEVISES    AND    LEGACIES.     In    a 

specific  devise  or  legacy,  the  title  passes  by  the  will,  Init 
possession  can  only  be  obtained  from  the  personal  repre- 
sentative; and  he  may  be  authorized  liy  the  superior  court 
to  sell  the  property  devised  and  ])cqueathed  in  the  cases  here- 
in provided. 

History:  Enacted  March  21,  1872;  amended  April  C,  1880.  Code 
Amdts.   1880    (C.   C.   pt.),  p.   8. 

§  1364.  HEIR'S  CONVEYANCE  GOOD,  UNLESS 
WILL  IS  PROVED  WITHIN  FOUR  YEARS.  The  rights 
of   a   purchaser   or   encumbrancer   of   real   property,   in    good 

543 


§§  1365-1367  CIVIL  code.  [Div.II.Pt.IV. 

faith  and  for  value,  derived  from  any  person  claiming  the 
same  by  succession,  are  not  impaired  by  any  devise  made 
by  the  decedent  from  whom  succession  is  claimed,  unless 
within  four  years  after  the  devisor's  death,  the  instrument 
containing  such  devise  is  duly  proved  as  a  will,  and  recorded 
in  the  office  of  the  clerk  of  the  superior  court  having  juris- 
diction thereof,  or.  written  notice  of  such  devise  is  filed  with 
the  clerk  of  the  county  where  the  real  property  is  situated. 

History:  Enacted  March  21,  1872;  amended  April  6,  18S0,  Code 
Amdts.  1880  (C.  C.  pt.),  p.  8;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  404.  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,   Stats,  and  Amdts.   1905,  p.   606. 


§  1365.  POSSESSION  OF  LEGATEES.  Where  specific 
legacies  are  for  life  only,  the  first  legatee  must  sign  and  de- 
liver to  the  second  legatee,  or,  if  there  is  none,  to  the  per- 
sonal representative,  an  inventory  of  the  property,  expressing 
that  the  same  is  in  his  custody  for  life  only,  and  that,  on  his 
decease,  it  is  to  be  delivered  and  to  remain  to  the  use  and  for 
the  benefit  of  the  second  legatee,  or  to  the  personal  repre- 
sentative, as  the  case  may  be. 

History:     Enacted  March  21,  1872. 


§  1366.  BEQUEST  OF  INTEREST.  In  case  of  a  be- 
quest of  the  interest  or  income  of  a  certain  sum  or  fund,  the 
income   accrues   from    the   testator's   death. 

History:      Enacted  March  21,  1872. 


§  1367.     SATISFACTION.     A  legacy,  or  a  gift  in  contem- 
plation, fear,  or  peril  of  death,  may  be  satisfied  before  death. 

History:      Enacted   March    21,    1872;    amended   March    30.    1874, 
Code  Amdts.   1873-4,   p.    235. 

544 


Tit.VI,ch.in.]      LKGACIES— POWERS.  §§1^68-1373 

§  1368.  LEGACIES,  WHEN  DUE.  Legacies  are  due  and 
deliverable  at  the  expiration  of  one  year  after  the  testator's 
decease.     Annuities  commence  at  the  testator's  decease. 

History:      Enacted  March  21,   1872. 

§  1369.  INTEREST.  Legacies  bear  interest  from  tlie  time 
when  they  are  due  and  payable,  except  that  legacies  for 
maintenance,  or  to  the  testator's  widow,  bear  interest  from 
the  testator's  decease. 

History:      Enacted  Marcli  21,   1S72. 

§1370.     CONSTRUCTION     OF    THESE    RULES.     The 

four  preceding  sections  are  in  all  cases  to  be  controlled  by 
a   testator's   express   intention. 

History:     Enacted  March   21,   1872. 

§  1371.     EXECUTOR  ACCORDING  TO   THE   TENOR. 

Where  it  appears,  by  the  terms  of  a  will,  that  it  was  the  in- 
tention of  the  testator  to  commit  the  execution  thereof  and 
the  administration  of  his  estate  to  any  person  as  executor, 
such  person,  although  not  named  executor,  is  entitled  to 
letters  testamentary  in  like  manner  as  if  he  had  been  named 
executor. 

History:     Enacted  March   21,   1872. 

§  1372.  POWER  TO  APPOINT  IS  INVALID.  .\n  au- 
thority to  an  executor  to  appoint  an  executor  is  void. 

History:     Enacted  March   21,   1872. 

§  1373.     EXECUTOR  NOT  TO  ACT  TILL  QUALIFIED. 

No  person  has  any  power,  as  an  executor,  until  he  qualifies, 
except  that,  before  letters  have  been  issued,  he  may  pay 
funeral  charges  and  take  necessary  measures  for  the  preser- 
vation of  the  estate. 

History:     Enacted  March  21,   1872. 
18  545 


§§1374-1377  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1374.     PROVISIONS    AS    TO    REVOCATIONS.     The 

provisions  of  this  title  in  relation  to  the  revocation  of  wills 
apply  to  all  wills  made  by  any  testator  living  at  the  expira- 
tion of  one  year  from  the  time  it  takes  effect. 

History:      Enacted  March   21,  1S72. 

§  1375.  EXECUTION  AND  CONSTRUCTION  OF 
PRIOR  WILLS  NOT  AFFECTED.  The  provisions  of  this 
title  do  not  impair  the  validity  of  the  execution  of  any  will 
made  before  it  takes  effect,  or  affect  the  construction  of  any 
such  will. 

History:      Enacted  March  21,  1S72. 

§  1376.  LAW  GOVERNING  VALIDITY  AND  INTER- 
PRETATION OF  WILLS.  The  validity  and  interpreta- 
tion of  wills,  wherever  made,  are  governed,  when  relating 
to  property  within  this  state,  by  the  law  of  this  state,  ex- 
cept as  provided  in  section  twelve  hundred  and  eighty-five. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  187S-4,  p.  235;  amended  by  Code  Commission,  Act 
"March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  404,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,    Stats,    and    Amdts.    1905,    p.    607. 

§  1377.  LIABILITY  OF  BENEFICIARIES  FOR  TES- 
TATOR'S OBLIGATIONS.  Those  to  whom  property  is 
given  by  will  are  liable  for  the  obligations  of  the  testator  in 
the  cases  and  to  the  extent  prescribed  by  the  Code  of  Civil 
Procedure. 

History:      Enacted  March  21,   1872. 


546 


Tit.VII.]  SUCCESSION— DEFINITION.  §  1383 


TITLE  Vn. 

SUCCESSION. 

§  1383.     Succession    defined. 

§  1384.     Intestate's   estate,   to   whom   passes. 

§  1385.     Personal  representatives   [repealed]. 

§  1386.  Succession  to  and  distribution  of  property  of  deceased 
person. 

§  1387.     Illegitimate   children    to   inherit   in   certain    events. 

§  1388.  Property  of  illegitimate  child  is  succeeded  to,  when 
and  how. 

§  1389.     Degrees   of  kindred,   how  computed. 

§  1390.     Same.      [Collateral   line.] 

§  1391.     Same.      [Ascending   and   descending   direct    line.] 

§  1392.     Same.      [Degrees    in   direct   line.] 

S  1393.     Same.      [Degrees  in  collateral  line.] 

§  1394.     Relatives  of  the  half-blood. 

§  1395.     Advancements   constitute  part   of   distributive   share. 

1  1396.     Advancements,   when    too    much,    or    not    enough. 

§  1397.     What   are   advancements. 

§  1398.     Value   of   advancements,   how    determined. 

§  1399.     When    heir,    advanced   to,    dies   before   decedent. 

§  1400.     Inheritance  of  husband  and  wife  from  each  other. 

§  1401.     Distribution  of  common  property  on  death  of  wife. 

§  1402.  Distribution  of  common  property  on  death  ''>f  t}ie  hus- 
band. 

§  1403.     Inheritance   by   representation. 

§  1404.     Aliens  may  inherit,  when,  and  how. 

§  1405.  Succession  not  claimed,  attorney-general  to  cause  to 
be  sold,  and  proceeds  deposited  with  state  treasurer. 

§  1406.     When  the  property  and  estate  escheat  to  the  state. 

■§  1407.  Property  escheated  subject  to  charges  as  other  prop- 
erty. 

§  1408.     Successor  liable   for   decedent's   obligations. 

§  1409.  Persons  convicted  of  murder  of  decedent  not  to  suc- 
ceed. 

§  1383.  SUCCESSION  DEFINED.  Succc.-^sion  is  the 
coming  in  of  another  to  take  the  property  of  one  wlio  dies 
without  disposing  of  it  by  will. 

History:     Enacted  March  21,   1872. 

547 


§§  1384-1386  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1384.     INTESTATE'S  ESTATE,  TO  WHOM  PASSES. 

The  property,  both  real  and  personal,  of  one  who  dies  with- 
out disposing  of  it  by  will,  passes  to  the  heirs  of  the  in- 
testate, subject  to  the  control  of  the  probate  court,  and  to 
the  possession  of  any  administrator  appointed  by  that  court, 
for  the  purposes  of  administration. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.   1873-4,  p.   236. 

§1385.     PERSONAL   REPRESENTATIVES    [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1873-4,   p.    236. 

§1386.  SUCCESSION  AND  DISTRIBUTION  OF 
PROPERTY  OF  DECEASED  PERSON.  When  any  per- 
son having  title  to  any  estate  not  otherwise  limited  by  mar- 
riage contract,  dies  without  disposing  thereof  by  will,  it  is 
succeeded  to  and  must  be  distributed,  unless  otherwise  ex- 
pressly provided  in  this  code  and  the  Code  of  Civil  Pro- 
cedure, subject  to  the  payment  of  his  debts,  in  the  following 
manner: 

1.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
only  one  child,  or  the  lawful  issue  of  one  child,  in  equal 
shares  to  the  surviving  husband,  or  wife  and  child,  or  issue 
of  such  child.  If  the  decedent  leaves  a  surviving  husband  or 
wife,  and  more  than  one  child  living,  or  one  child  living  and 
the  lawful  issue  of  one  or  more  deceased  children,  one-third 
to  the  surviving  husband  or  wife,  and  the  remainder  in  equal 
shares  to  his  children  and  to  the  lawful  issue  of  any  deceased 
child,  by  right  of  representation;  but  if  there  is  no  child  of 
decedent  living  at  his  death,  the  remainder  goes  to  all  of  his 
lineal  descendants;  and  if  all  of  the  descendants  are  in  the 
same  degree  of  kindred  to  the  decedent,  they  share  equally, 
otherwise  they  take  according  to  the  right  of  representation. 
If  the  decedent  leaves  no  surviving  husband  or  wife,  but 
leaves  issue,  the  whole  estate  goes  to  such  issue;  and  if  such 

548 


Tit.VII.]  SUCCESSION,    DISTRIBUTION.  §  1386 

issue  consists  of  more  than  one  child  living,  or  one  child  liv- 
ing and  the  law^ful  issue  of  one  or  more  deceased  children, 
then  the  estate  goes  in  equal  shares  to  the  children  living, 
or  to  the  child  living  and  the  issue  of  the  deceased  child  or 
children  by  right  of  representation; 

2.  If  the  decedent  leaves  no  issue,  the  estate  goes  one-half 
to  the  surviving  husband  or  wife,  and  the  other  half  to  the 
decedent's  father  and  mother  in  equal  shares,  and  if  either  is 
dead  the  whole  of  said  half  goes  to  the  other.  If  there  is  no 
father  or  mother,  then  one-half  goes  in  equal  shares  to  the 
brothers  and  sisters  of  decedent  and  to  the  children  or  grand- 
children of  any  deceased  brother  or  sister  by  right  of  repre- 
sentation. If  the  decedent  leaves  no  issue,  nor  husband  nor 
wife,  the  estate  must  go  to  his  father  and  mother  in  equal 
shares,  or  if  either  is  dead  then  to  the  other; 

3.  If  there  is  neither  issue,  husband,  wife,  father,  nor 
mother  then  in  equal  shares  to  the  brothers  and  sisters  of  de- 
cedent and  to  the  children  or  grandchildren  of  any  deceased 
brother  or  sister,  by  right  of  representation; 

4.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
neither  issue,  father,  mother,  brother,  sister,  nor  the  children 
or  grandchildren  of  a  deceased  brother  or  sister,  the  whole 
estate  goes  to  the  surviving  husband  or  wife; 

5.  If  the  decedent  leaves  neither  issue,  husband,  wife,  fa- 
ther, mother,  brother,  nor  sister,  the  estate  must  go  to  the 
next  of  kin,  in  equal  degree,  excepting  that,  when  there  are 
two  or  more  collateral  kindred,  in  equal  degree,  but  claiming 
through  different  ancestors,  those  who  claim  through  the 
nearest  ancestor  must  be  preferred  to  those  claiming  through 
an  ancestor  more  remote; 

6.  If  the  decedent  leaves  several  children,  or  one  child  and 
the  issue  of  one  or  more  children,  and  any  such  surviving 
child  dies  under  age  and  not  having  been  married,  all  the 
estate  that  came  to  the  deceased  child  by  inheritance  from 
such  decedent  descends  in  equal  shares  to  the  other  children 

549 


§  1386  CIVIL  CODE.  [Div.II.Pt.IV. 

of  the   same  parent  and  to  the  issue  of  any  such  other  chil- 
dren who  are  dead,  by  right  of  representation; 

7.  If,  at  the  death  of  such  child,  who  dies  under  age,  not 
having  been  married,  all  the  other  children  of  his  parents 
are  also  dead,  and  any  of  them  has  left  issue,  the  estate  that 
came  to  such  child  by  inheritance  from  his  parent  descends 
to  the  issue  of  all  other  children  of  the  same  parent;  and  if 
all  the  issue  are  in  the  'same  degree  of  kindred  to  the  child, 
they  share  the  estate  equally,  otherwise  they  take  according 
to  the  right  of  representation; 

8.  If  the  deceased  is  a  widow,  or  widower,  and  leaves  no 
issue,  and  the  estate,  or  any  portion  thereof,  was  common 
property  of  such  decedent  and  his  or  her  deceased  spouse, 
while  such  spouse  was  living,  such  property  goes  in  equal 
shares  to  the  children  of  such  deceased  spouse  and  to  the 
descendants  of  such  children  by  right  of  representation,  and 
if  none,  then  one-half  of  such  common  property  goes  to  the 
father  and  mother  of  such  decedent  in  equal  shares,  or  to 
the  survivor  of  them  if  either  be  dead,  or  if  both  be  dead, 
then  in  equal  shares  to  the  brothers  and  sisters  of  such  de- 
cedent and  to  the  descendants  of  any  deceased  brother  or 
sister  by  right  of  representation,  and  the  other  half  goes  to 
the  father  and  mother  of  such  deceased  spouse  in  equal 
shares,  or  to  the  survivor  of  them  if  either  be  dead,  or  if 
both  be  dead,  then  in  equal  shares  to  the  brothers  and  sis- 
ters of  such  deceased  spouse  and  to  t}ie  descendants  of  any 
deceased  brother  or  sister  by  right  of  representation. 

If  the  estate,  or  any  portion  thereof,  was  separate  property 
of  such  deceased  spouse,  while  living,  and  came  to  such  de- 
cedent from  such  spouse  by  descent,  devise,  or  bequest,  such 
property  goes  in  equal  shares  to  the  children  of  such  spouse 
and  to  the  descendants  of  any  deceased  child  by  right  of  rep- 
resentation, and  if  none,  then  to  the  father  atid  mother  of 
such  spouse,  in  equal  shares,  or  to  the  survivor  of  them  if 
either  be  dead,  or  if  both  be  dead,  then  in  equal  shares  to 

550 


Tit. VII.]  BASTARDS — INHERIT   WHEN.  §  1387 

the  brothers  and  sisters  of  such  spouse  and  to  the  descend- 
ants of  any  deceased  brother  or  sister  by  right  of  representa- 
tion. 

9.  If  the  decedent  leaves  no  husband,  wife,  or  kindred,  and 
there  are  no  heirs  to  take  his  estate  or  any  portion  thereof, 
under  subdivision  eight  of  this  section,  the  same  escheats 
to  the  state  for  the  support  of  tlie  common  schools. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  236;  Aprjl  23,  1880,  Code  Amdts.  1880  (C. 
C.  pt.),  p.  14;  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  404,  lield  unconstitutional,  see  history, 
§  .593  ante;  amendment  re-enacted  March  21,  190.5,  Stats,  and 
Amdts.  1905,  pp.  607,  608;  amended  March  18,  1907,  Stats,  and 
Amdts.  1907,  pp.  567-569,  Kerr's  Stats,  and  Amdts.  1906-7,  pp. 
424,  425. 

§1387.  ILLEGITIMATE  CHILDREN  TO  INHERIT 
IN  CERTAIN  EVENTS.  Every  illegitimate  child  is  an 
heir  of  the  person  who,  in  writing,  signed  in  the  presence  of 
a  competent  witness,  acknowledges  himself  to  be  the  father 
of  such  child;  and  in  all  cases  is  an  heir  of  his  mother;  and 
inherits  his  or  her  estate,  in  whole  or  in  part,  as  the  case 
may  be,  in  the  same  manner  as  if  he  had  been  born  in  law- 
ful wedlock;  but  he  does  not  represent  his  father  or  mother 
b)"-  inheriting  any  part  of  the  estate  of  his  or  her  kindred, 
either  lineal  or  collateral,  unless,  before  his  death,  his  par- 
ents shall  have  intermarried,  and  his  father,  after  such  mar- 
riage, acknowledges  him  as  his  child,  or  adopts  him  into  his 
family;  in  which  case  such  child  and  all  the  legitimate  chil- 
dren are  considered  brothers  and  sisters,  and  on  the  death 
of  either  of  them,  intestate,  and  without  issue,  the  others  in- 
herit his  estate,  and  are  heirs,  as  hereinbefore  provided,  in 
like  manner  as  if  all  the  children  had  been  legitimate;  sav- 
ing to  the  father  and  mother,  respectively,  their  rights  in  the 
estates  of  all  the  children  in  like  manner  as  if  all  had  been 
legitimate.  The  issue  of  all  marriages  null  in  law,  or  dis- 
solved by  divorce,  are  legitimate. 

551 


§§1388-1391  CIVIL  CODE.  [Div.II.Pt.IV. 

Histoo":  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  405,  held 
unconstitutional,   see  history,   §  4   ante. 

§  1388.  PROPERTY  OF  ILLEGITIMATE  CHILD  IS 
SUCCEEDED  TO,  WHEN  AND  HOW.  The  estate  of  an 
illegitimate  child,  who  has  been  legitimated  by  the  subse- 
quent marriage  of  its  parents,  or  adopted  by  the  father  as 
provided  by  section  two  hundred  and  thirty,  and  who  dies 
intestate,  is  succeeded  to  as  if  he  were  born  in  lawful  wed- 
lock. If  such  child  has  not  been  so  legitimated  or  adopted, 
his  estate  goes  to  his  lawful  issue,  or,  if  he  leaves  no  issue, 
to  his  mother,  or  in  case  of  her  decease,  to  her  heirs  at  law. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  406, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted   March   21,    1905,    Stats,    and   Amdts.    1905,   p.    609. 

§  1389.     DEGREE   OF   KINDRED,   HOW   COMPUTED. 

The  degree  of  kindred  is  established  by  the  number  of  gen- 
erations, and  each  generation  is  called  a  degree. 

History:      Enacted  March   21,   1872. 

§  1390.  SAME.  [COLLATERAL  LINE.]  The  series  of 
degrees  forms  the  line;  the  series  of  degrees  between  per- 
sons who  descend  from  one  another  is  called  direct  or  lineal 
consanguinity;  and  the  series  of  degrees  between  persons 
who  do  not  descend  from  one  another,  but  spring  from  a 
common  ancestor,  is  called  the  collateral  line  or  collateral 
consanguinity. 

History:  Enacted  March  21,  1872,  founded  upon  Louisiana 
Civil   Code,   art.    886. 

§1391.  SAME.  [ASCENDING  AND  DESCENDING 
DIRECT  LINE.]  The  direct  line  is  divided  into  a  direct 
line  descending  and  a  direct  line  ascending.     The  first  is  that 

552 


Tit.VIL]  DEGREES— DIFFERENT  LINES.        §§1392-1394 

which  connects  the  ancestors  with  those  who  descend  from 
him.  The  second  is  that  which  connects  a  person  with  those 
from  whom   he   descends. 

History:      Enacted    March    21,    1872,    founded    upon    Louisiana 
Civil    Code,    art.    886. 


§  1392.     SAME.     [DEGREES    IN    DIRECT    LINE.]      In 

the  direct  line  there  are  as  many  degrees  as  there  are  gen- 
erations. Thus,  the  son  is,  with  regard  to  the  father,  in  the 
first  degree;  the  grandson  in  the  second;  and  vice  versa  with 
regard  to  the  father  and  grandfather  toward  the  sons  and 
grandsons. 

History:  Enacted  March  21,  1872,  founded  upon  Louisiana 
Civil   Code,   art.   887. 

§  1393.     SAME.     [DEGREES  IN  COLLATERAL  LINE.] 

In  the  collateral  line  the  degrees  are  counted  by  generations, 
from  one  of  the  relations  up  to  the  common  ancestor,  and 
from  the  common  ancestor  to  the  other  relations.  In  such 
computation  the  decedent  is  excluded,  the  relative  included, 
and  the  ancestor  counted  but  once.  Thus,  brothers  are  re- 
lated in  the  second  degree;  uncle  and  nephew  in  the  third 
degree;  cousins  german  in  the  fourth,  and  so  on. 

Histoi-y:  Enacted  March  21,  1872,  founded  upon  Louisiana 
Civil  Code,   art.   8SS;   Montesq.   Esprit  des  Lois,  liv.   27. 

§  1394.  RELATIVES  OF  THE  HALF-BLOOD.  Kin- 
dred of  the  half-blood  inherit  equally  with  those  of  the  whole 
blood  in  the  same  degree,  unless  the  inheritance  come  to 
the  intestate  by  descent,  devise,  or  gift  of  some  one  of  his 
ancestors,  in  which  case  all  those  who  are  not  of  the  blood 
of  such  ancestors  must  be  excluded  from  such  inheritance. 

History:  Enacted  March  21,  1872,  founded  upon  §  4  Act  April 
13,   1850,   Stats.    1850,   p.   221. 

553 


§§1395-1398  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1395.  ADVANCEMENTS  CONSTITUTE  PART  OF 
DISTRIBUTIVE  SHARE.  Any  estate,  real  or  personal, 
given  by  the  decedent  in  his  lifetime  as  an  advancement  to 
any  child,  or  other  heir,  is  a  part  of  the  estate  of  the  decedent 
for  the  purposes  of  division  and  distribution  thereof  among 
Iiis  heirs,  and  must  be  taken  by  such  child,  or  other  heir,  to- 
ward his  share  of  the  estate  of  the  decedent. 

History:  Enacted  March  21,  1872,  founded  upon  §  5  Act  April 
13,  1850,  Stats.  1850,  p.  221;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  406,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  p.    609. 

§  1396.  ADVANCEMENTS,  WHEN  TOO  MUCH,  OR 
NOT  ENOUGH.  If  the  amount  of  such  advancement  ex- 
ceeds the  share  of  the  heir  receiving  the  same,  he  must 
be  excluded  from  any  further  portion  in  the  division  and 
distribution  of  the  estate,  but  he  must  not  be  required  to 
refund  any  part  of  such  advancement;  and  if  the  amount  so 
received  is  less  than  his  share,  he  is  entitled  to  so  much  more 
as  will  give  him  his  full  share  of  the  estate  of  the  decedent. 

History:  Enacted  March  21,  1872,  founded  upon  §  6  Act  April 
13,    1850,    Stats.    1850,   p.    221. 

§  1397.  WHAT  ARE  ADVANCEMENTS.  All  gifts  and 
grants  are  made  as  advancements,  if  expressed  in  the  gift  or 
grant  to  be  so  made;  or  if  charged  in  writing  by  the  decedent 
as  an  advancement,  or  acknowledged  in  writing  as  such,  by 
the  child  or  otHer  successor  or  heir. 

History:  Enacted  March  21,  1S72,  founded  upon  §  7  Act  April 
13,   1850,    Stats.    1850,   p.    221. 

§  1398.  VALUE  OF  ADVANCEMENTS,  HOW  DETER- 
MINED. If  the  value  of  the  estate  so  advanced  is  expressed 
in  the  conveyance,  or  in  the  charge  thereof  made  by  the  de- 
cedent, or  in  the  acknowledgment  of  the  party  receiving  it,  it 

554 


Tit. VII.]  ADVANCEMENT— DEATH  OF  HEIR.   §§  1399-1401 

must  be  held  as  of  that  value  in  the  division  and  distribu- 
tion of  the  estate;  otherwise,  it  must  be  estimated  according 
to  its  value  when  given,  as  nearly  as  the  same  can  be  ascer- 
tained. 

History:  Enacted  March  21,  1872,  founded  upon  §  8  Act  April 
13,   1850,    Stats.   1850,  p.   221. 

§  1399.  WHEN  HEIR,  ADVANCED  TO,  DIES  BE- 
FORE DECEDENT.  If  any  child,  or  other  heir  receiving 
advancement,  dies  before  the  decedent,  leaving  heirs,  the 
advancement  must  be  taken  into  consideration  in  the  di- 
vision and  distribution  of  the  estate,  and  the  amount  the"reof 
must  be  allowed  accordingly  by  the  representatives  of  the 
heirs  receiving  the  advancement,  in  like  manner  as  if  the 
advancement  had  been  made   directly  to  them. 

History:  Enacted  March  21,  1872,  founded  upon  §  9  Act  April 
IZ,  1850,  Stats.  1850,  p.  221;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Anidts.  1900-1,  p.  406,  held  uncon- 
stitutional, see  history,  §  4  ante;  amendment  re-enacted  March 
21,  1905,  Stats,  and  Amdts.   1905,  p.   609. 

§  1400.  INHERITANCE  OF  HUSBAND  AND  WIFE 
FROM  EACH  OTHER.  The  provisions  of  the  preceding 
sections  of  this  title,  as  to  the  inhepitance  of  the  husband 
and  wife  from  each  other,  apply  only  to  the  separate  prop- 
erty of  the   decedents. 

History:  Enacted  March  21,  1872,  founded  upon  §  10  Act 
April    13,  1850,  Stats.   1850,  p.   221. 

§  1401.  DISTRIBUTION  OF  COMMUNITY  PROPER- 
TY ON  DEATH  OF  WIFE.  Upon  the  death  of  the  wife, 
the  •  entire  community  property,  without  administration,  be- 
longs to  the  surviving  husband,  except  such  portion  thereof 
as  may  have  been  set  apart  to  her  by  judicial  decree,  for 
her  support  and  maintenance,  which  portion  is  subject  to 
her    testamentary    disposition,    and    in    the    absence    of    such 

555 


§§  1402-1404  CIVIL  CODE.  [Div.II,Pt.IV. 

disposition,   goes    to   her   descendants,   or  heirs,    exclusive   of 
her  husband. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
17,  1850,  Stats.  1850,  p.  255,  as  amended  April  4,  1864,  Stats. 
1863-4,  p.  363;  amended  April  30,  1874,  Code  Amdts.  1873-4,  p.  238. 

§  1402.  DISTRIBUTION  OF  COMMON  PROPERTY 
ON  DEATH  OF  THE  HUSBAND.  Upon  the  death  of  the 
husband,  one-half  of  the  community  property  goes  to  the 
surviving  wife,  and  the  o't-her  half  is  subject  to  the  testa- 
mentary disposition  of  the  husband,  and  in  the  absence  of 
such  disposition,  goes  to  his  descendants,  equally,  if  such 
descendants  are  in  the  same  degree  of  kindred  to  the  dece- 
dent; otherwise,  according  to  the  right  of  representation; 
and  in  the  absence  of  both  such  disposition  and  such  de- 
scendants, is  subject  to  distribution  in  the  same  manner  as 
the  separate  property  of  the  husband.  In  case  of  the  disso- 
lution of  the  community  by  the  death  of  the  husband,  the 
entire  community  property  is  equally  subject  to  his  debts,  the 
family  allowance,  and  the  charges  and  expenses  of  admin- 
istration. 

History:  Enacted  March  21,  1872,  founded  upon  §  11  Act  April 
17,  1850,  "Stats.  1850,  p.  255,  as  amended  April  4.  1864,  Stats. 
1S63-4,  p.   363. 

§  1403.  INHERITANCE  BY  REPRESENTATION.  In- 
heritance or  succession  "by  right  of  representation"  takes 
place  when  the  descendants  of  any  deceased  heir  take  the 
same  share  or  right  in  the  estate  of  another  person  that 
their  parents  would  have  taken  if  living.  Posthumous  chil- 
dren are  considered  as  living  at  the  death  of  their  parents. 

History:  Enacted  March  21,  1872,  founded  upon  §  11  Act 
April  13,  1850,  Stats.  1850,  p.  221. 

§  1404.     ALIENS  MAY  INHERIT,  WHEN,  AND  HOW. 

Resident  aliens  may   take  in  all  cases  by  succession  as  citi- 

556 


Tit.VII.]  SUCCESSION  NOT  CLAIMED.  §§  1405,  1406 

zens;  and  no  person  capable  of  succeeding  under  the  pro- 
visions of  this  title  is  precluded  from  such  succession  by 
reason  of  the  alienage  of  any  relative;  but  no  non-resident 
foreigner  can  take  by  succession  unless  he  appears  and 
claims  such  succession  within  five  years  after  the  death  of 
the  decedent  to  whom  he  claims  succession. 

History:      Enacted   March   21,    1872,   founded   upon  Const.   1S49, 
art.  I,   §  17,  and  §  1  Act  April   19,  1856,  Stats.   1856,  p.   137. 


§  1405.  SUCCESSION  NOT  CLAIMED,  ATTORNEY- 
GENERAL  TO  CAUSE  TO  BE  SOLD,  AND  PROCEEDS 
DEPOSITED  WITH  STATE  TREASURER.  When  suc- 
cession is  not  claimed  as  provided  in  the  preceding  section, 
the  superior  court,  on  information,  must  direct  the  attorney- 
general  to  reduce  the  property  to  his  possession  or  that  of 
the  state,  or  to  cause  it  to  be  sold,  and  it  or  its  proceeds 
to  be  deposited  in  the  state  treasury  for  the  benefit  of  the 
person  entitled  thereto,  to  be  paid  to  him,  if,  within  five 
years  after  such  deposit,  he  appears  in  the  court  in  which 
such  information  was  filed  and  asks  for  a  judgment  or  order 
entitling  him  thereto. 

History:  Enacted  March  21,  1S72,  founded  upon  §  1  Act  April 
19,  1856,  Stats.  1856,  p  137;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  406,  held  uncon- 
stitutional, see  history,  §  4  ante;  amendment  re-enacted  March 
21,   1905,  Stats,  and  Amdts.  1905,  p.   609. 

§  1406.  WHEN  THE  PROPERTY  AND  ESTATE 
ESCHEAT  TO  THE  STATE.  When  sucli  judgment  or  or- 
der is  obtained,  a  certified  copy  thereof  must  be  filed  with 
the  state  treasurer  as  his  voucher.  Thereupon  the  property 
must  be  delivered,  or  the  proceeds  paid,  to  the  claimant,  on 
filing  his  receipt  therefor.  If  no  one  succeeds  to  the  estate 
or  the  proceeds,  as  herein  provided,  the  property  of  the  de- 


557 

/    Ir 


§§1407-1409  CIVIL  CODK.  fDiv.II,Pt.IV. 

cedent  devolves  and  escheats  to  the  people  of  the  state,  and 
must  be  placd  by  the  state  treasurer  to  tlie  credit  of  the 
scliool   fund. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
19,  1856,  Stats.  1S56,  p.  137;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  407,  held  uncon- 
stitutional, see  liistory,  §  4  ante;  amendment  re-enacted  March 
21,   1905,  Stats,   and  Amdts.   1905,  p.   610. 

§  1407.  PROPERTY  ESCHEATED  SUBJECT  TO 
CHARGES  AS  OTHER  PROPERTY.  Real  property  pass- 
ing to  the  state  under  the  last  section,  whether  held  by  the 
state  or  its  ofhcers,  is  subject  to  the  same  charges  and  trusts 
to  which  it  would  have  been  subject  if  it  had  passed  by  suc- 
cession, and  is  also  subject  to  all  the  provisions  of  title  eighy 
part  three,  of  the  Code  of  Civil  Procedure. 

History:  Enacted  March  21,  1872,  founded  upon  Act  April  30, 
1S55,  Stats.  1855,  pp.  221,  222,  as  amended  by  Act  February  16, 
1870,  Stats.  1869-70,  p.   72. 

§  1408.  SUCCESSOR  LIABLE  FOR  DECEDENT'S  OB- 
LIGATIONS. Those  who  succeed  to  the  property  of  a  de- 
cedent are  liable  for  his  obligations  in  the  cases  and  to  the 
extent  prescribed  by  the  Code  of  Civil  Procedure. 

History:      Enacted  March  21,  1872. 


§  1409.  PERSON  CONVICTED  OF  MURDER  OF  DE- 
CEDENT, NOT  TO  SUCCEED.  No  person  who  has  been 
convicted  of  the  murder  of  the  decedent  shall  be  entitled 
to  succeed  to  any  portion  of  his  estate;  but  the  portion  there- 
of to  which  he  would  otherwise  be  entitled  to  succeed  de- 
scends to  the  other  persons  entitled  thereto  under  the  pro- 
visions of  this  title. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    610. 


558 


Tit.Vni.]  KIGHT  TO  WATER— ACQUIRING.  §1410 


TITLE  VIII. 

WATER-RIGHTS. 

§  1410.     Rights   to   water   may   be  acquired  by   appropriation. 

§  1410a.  Use  of  waters  flowing  out  of  state. 

§  1410b.  Maintenance  of  flow  of  water  in  streams  to  canal  in- 
takes. 

§1411.     Appropriation    must   be   for   a   useful   purpose. 

§  1412.     Point  of  diversion  may  be  clianged. 

§  1413.     Water   may   be   turned   into   natural   channels. 

'§  1414.     First  in  time,  first  in   right. 

§1415.     Notice  of  appropriation  of  water;  contents.     Recording. 

§  1416.     Diligence  in   appropriation   of  water. 

§  1417.     Completion   defined. 

§  1418.     Doctrine  of  relation  applied. 

§  1419.     Forfeiture. 

§  1420.     Rights  of  present  claimant. 

§  1421.     Recorder   to   keep   book  in   which  to   record  notice. 

§  1422.  Time  witliin  which  to  commence  excavation  on  public 
reservations. 

§  1410.  HOW  RIGHTS  TO  WATER  MAY  BE  AC- 
QUIRED. All  water  or  the  use  of  water  within  the  state  of 
California  is  the  property  of  the  people  of  the  state  of  Cali- 
fornia, but  the  right  to  the  use  of  running  water  flowing  in 
a  river  or  stream  or  down  a  canyon  or  ravine  may  be  ac- 
quired by  appropriation  in  the  manner  provided  by  law,'  pro- 
vided, that  no  water  for  the  generation  of  electricity  or  elec- 
trical or  other  power  may  be  appropriated  for  a  longer  period 
than  twenty-five  years,  except  by  a  municipal  corporation, 
other  than  an  irrigation  district  or  a  lighting  district,  or 
by  an  irrigation  district  when  such  electricity,  electrical  or 
other  power  is  for  use  and  distribution  only  within  its  own 
limits,  and  as  subsidiary  to  and  mainly  for  the  purpose  of 
serving  and  carrying  out  irrigation,  or  by  a  lighting  district 
when  such  electricity,  electrical  or  other  power  is  for  use  and 
distribution  only  within  its  own  limits. 

History:  Enacted  March  21,  1S72;  amended  April  8,  1911, 
Stats,  and  Amdts.  1911,  p.  421.     lu  effect  immediately. 


559 


n 


§§  1410a,  1410b  CIVIL  CODE.  [Div.II,Pt.l V. 

§  1410a.  USE  OF  WATERS  FLOWING  OUT  OF 
STATE.  The  entire  flow  of  water  in  any  natural  stream 
which  carries  water  from  the  State  of  California  into  any 
other  state  is  subject  to  use  in  the  State  of  California,  under 
the  laws  of  the  State  of  California,  and  the  right  may  be,  so 
far  as  not  already  acquired  by  use  in  the  State  of  California, 
acquired  and  held  under  the  laws  of  the  State  of  California. 
The  rights  to  the  use  of  such  water  held  under  the  laws  of 
the  State  of  California,  shall  be  prior  and  superior  to  any 
rights  to  the  waters  of  such  streams  held  under  the  laws  of 
any   other   state. 

History:  Enacted  April  25,  1913,  Stats,  and  Amdts.  1913,  p. 
93.    .In   effect   August  10,    1913. 

§  1410b.  MAINTENANCE  OF  FLOW  OF  WATER  IN 
STREAMS  TO  CANAL  INTAKES.  The  flow  of  water  in 
any  natural  stream  to. the  intake  of  any  canal  diverting  water 
therefrom  for  sale,  rental  or  distribution  to  the  public  or 
for  any  public  use,  or  the  use  of  any  farming  neighborhood 
may  be  maintained  by  the  person  in  charge  of  such  use  by 
restoring  or  repairing  any  break  in  the  bank  of  the  stream, 
and  by  maintaining  the  banks  of  the  stream,  and  by  pre- 
venting by  physical  structure  and  other  appropriate  means 
any  increased  flow  of  water  through  any  natural  by-ways 
of  water  which  carry  or  threaten  to  carry  such  increase  of 
water  of  the  stream  avjay  from  such  intake;  provided,  how- 
ever, that  no  act  herein  authorized,  when  performed,  shall 
prevent,  retard  or  obstruct  the  building  thereafter  of  any 
reclamation,  protection  or  flood  control  levee  and  the  main- 
tenance thereof;  nor  shall  any  act  herein  authorized  prevent 
the  use  of  any  natural  channel  nor  the  enlargement  thereof, 
for  municipal  purposes  or  for  use  in  connection  with  any 
artificial  system  of  drainage,  irrigation  or  flood  control  not 
causing  the  flow  of  water  in  the  channel  at  the  intake  of  such 
canal  to  be  less  than  the  quantity  of  water  the  owners  and 
appropriators  may  have  the  right  to  divert  into  said  intake; 

560 


Tit. VIII.]  APPROPRIATION — DIVERSION.  §§  1411-1413 

nor  shall  any  act  herein  authorized  prevent  the  use  of  any- 
natural  channel  or  the  enlargement  thereof  to  convey  water 
appropriated  under  the  laws  of  the  State  of  California, 
where  such  natural  channel  shall  be  designated  as  the  means, 
or  part  of  the  means  of  conveying  the  water  so  appropriated; 
nor  shall  the  acts  herein  authorized  limit  the  powers  or  au- 
thority of  the  water  commission  of  the  State  of  California 
to  accomplish  in  its  own  way  the  purposes  of  this  section, 
nor  interfere  with  the  construction  of  any  flood  control 
works  in  accordance  with  any  plan  of  flood  control  adopted 
by  the  reclamation  board. 

History:  Enactment  approved  June  9,  1915,  Stats,  and  Amdts. 
1915,  p.   1376.      In  effect  August  8,   1915. 

§  1411.  APPROPRIATION  MUST  BE  FOR  A  USEFUL 
PURPOSE.  The  appropriation  must  be  for  some  useful 
or  beneficial  purpose,  and  when  the  appropriator  or  his  suc- 
cessor in  interest  ceases  to  use  it  for  such  a  purpose,  the 
right  ceases. 

History:     Enacted  March  21,  1872. 

§  1412.     POINT  OF  DIVERSION  MAY  BE  CHANGED. 

The  person  entitled  to  the  use  may  change  the  place  of  di- 
version, if  others  are  not  injured  by  such  change,  and  may 
extend  the  ditch,  fluine,  pipe,  or  aqueduct  by  which  the  di- 
version is  made  to  places  beyond  that  where  the  first  use  was 
made. 

History:     Enacted  March  21,  1872. 

§  1413.  WATER  MAY  BE  TURNED  INTO  NATURAL 
CHANNELS.  The  water  appropriated  may  be  turned  into 
the  channel  of  another  stream  and  mingled  with  its  water, 
and  then  reclaimed;  but  in  reclaiming  it  the  water  alreadj^ 
appropriated  by  another  must  not  be  diminished. 

History:     Enacted  March  21,  1872. 

561 


§§1414-1416  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1414.  FIRST  IN  TIME,  FIRST  IN  RIGHT.  As  be- 
tween appropriators,  the  one  first  in  time  is  the  first  in 
right. 

History:      Enacted  March  21,  1872. 

§  1415.  NOTICE  OF  APPROPRIATION  OF  WATER; 
CONTENTS.  RECORDING.  A  person  desiring  to  appro- 
priate water  must  post  a  notice,  in  writing,  in  a  conspicuous 
place  at  the  point  of  intended  diversion,  stating  therein: 

1.  That  he  claims  the  water  there  flowing  to  the  extent 
of  (giving  the  number)  inches,  measured  under  a  four-inch 
pressure; 

2.  The  purpose  for  which  he  claims  it,  and  the  place  of 
intended  use; 

3.  The  means  by  which  he  intends  to  divert  it,  and  the  size 
of  the  flume,  ditch,  pipe,  or  aqueduct  in  which  he  intends  to 
divert  it. 

[Notice  must  be  recorded.]  A  copy  of  the  notice  must, 
within  ten  days  after  it  is  posted,  be  recorded  in  the  office 
of  the  recorder  of  the   county  in  which  it  is  posted. 

After  filing  such  copy  for  record,  the  place  of  intended 
diversion  or  the  place  of  intended  use  or  the  means  by  which 
it  is  intended  to  divert  the  water,  may  be  changed  by  the 
person  posting  said  notice  or  his  assigns,  if  others  are  not 
injured  by  such  change.  This  provision  applies  to  notices 
already  filed  as  well  as  to  notices  hereafter  filed. 

History:  Enacted  March  21,  1872;  amended  March  21,  1903, 
Stats,  and  Amdts.  1903,  p.  361.     In  force  March  21,  1903. 

§  1416.  DILIGENCE  IN  APPROPRIATION  OF 
WATER.  Within  sixty  days  after  the  notice  is  posted,  the 
claimant  must  commence  the  excavation  or  construction  of 
the  works  in  which  he  intends  to  divert  the  water,  or  the 
survey,  road  or  trail  building,  necessarily  incident  thereto, 
and  must  prosecute  the  work  diligently  and  uninterruptedly 
to   completion,   unless    temporarily   interrupted   by   snows   or 

562 


Tit. VIII.]  DILIGENCE— COMPLETION.  §  I417 

rain;  provided,  that  if  the  erection  of  a  dam  has  been  rec- 
ommended by  the  California  debris  commission  at  or  near 
the  place  where  it  is  intended  to  divert  the  water,  the  claim- 
ant shall  have  sixty  days  after  the  completion  of  such  dam  ir 
which  to  commence  the  excavation  or  construction  of  the 
works  in  which  he  intends  to  divert  the  water;  provided, 
that  whenever  any  city  and  county,  or  any  incorporated  city 
or  town  within  this  state  makes,  or  has  made,  or  acquires, 
or  has  acquired  any  appropriation  of  any  of  the  waters  of 
this  state  in  accordance  with  the  provisions  of  section  four- 
teen hundred  and  fifteen  of  this  code,  it  shall  not  be  neces- 
sary for  such  city  and  county,  city  or  town  to  commence  the 
work  for  development  of  more  of  the  water  so  claimed  than 
is  actually  necessary  for  the  immediate  needs  of  such  city 
and  county,  city  or  town  and  it  shall  be  held  to  be  a  suffi- 
cient compliance  with  the  requirements  of  this  chapter,  to  the 
full  amount  of  water  stated  in  the  notice  posted  and  re- 
corded, for  such  city  and  county,  city  or  town  to  within  sixty 
days  make  the  necessary  surveys,  or  within  six  months  to 
authorize  the  issuance  of  municipal  bonds,  for  the  construc- 
tion of  the  necessary  works  designed  to  supply  such  city  and 
county,  city  or  town  with  the  water  required  for  immediate 
use.  Any  appropriation  heretofore  made  by  any  such  city 
and  county,  city  or  town  in  connection  with  which  surveys 
were  at  any  time  made,  or  an  issue  of  bonds  authorized  for 
the  construction  of  any  portion  of  the  works  necessary  for 
a  diversion  of  any  part  of  the  water  appropriated,  is  hereby 
confirmed  to  the  full  amount  of  water  stated  in  the  original 
notice  or  notices. 

History:  Enacted  March  21,  1872;  amended  March  22,  1895, 
Stats,  and  Amdts.  189.5,  p.  396;  March  21,  1907,  Stats,  and  Amdts. 
1907,  p.  780..  Kerr's  Stats,  and  Amdts.  1906-7,  p.  425;  May  1, 
1911,  Stats,  and  Amdts.   1911,  p.   1419. 

§1417.  COMPLETION  DEFINED.  By  "completion"  is 
meant  conducting  the  waters  to  the  place  of  intended  use. 

Hislory:     Enacted  March   21,  1872. 

563 


§§  1418-1422  Civil.  CODE.  [Div.II.Pt.IV. 

§  1418.     DOCTRINE  OF  RELATION  APPLIED.     By  a 

compliance  with  the  above  rules  the  claimant's  right  to  the 
use  of  the  water  relates  back  to  the  time  the  notice  was 
posted. 

History:     Enacted   March  21,  1872. 

§  1419.  FORFEITURE.  A  failure  to  comply  with  such 
rules  deprives  the  claimants  of  the  right  to  the  use  of  the 
water  as  against  a  subsequent  claimant  who  complies  there- 
with. 

History:     Enacted  March  21,  1872. 

§1420.  RIGHTS  OF  PRESENT  CLAIMANT.  Persons 
who  have  heretofore  claimed  the  right  to  water,  and  who 
have  not  constructed  works  in  which  to  divert  it,  and  who 
have  not  diverted  nor  applied  it  to  some  useful  purpose,  must, 
after  this  title  takes  effect,  and  within  twenty  days  there- 
after, proceed  as  in  this  title  provided,  or  their  right  ceases. 

History:     Enacted  March   21,  1872. 


§  1421.  RECORDER  TO  KEEP  BOOK  IN  WHICH  TO 
RECORD  NOTICES.  The  recorder  of  each  county  must 
keep  a  book,  in  which  he  must  record  the  notices  provided 
for  in  this  title. 

History:     Enacted  March  21,  1872. 

§  1422.  TIME  WITHIN  WHICH  TO  COMMENCE  EX- 
CAVATION    ON     PUBLIC     RESERVATIONS.     If     the 

place  of  intended  diversion  or  any  part  of  the  route  of  in- 
tended conveyance  of  water  so  claimed,  be  within,  and  a 
part  of,  any  national  park,  forest  reservation,  or  other  pub- 
lic reservation,  and  be  so  shown  in  the  notice  of  appropria- 
tion of  said  water,  then  the  claimant  shall  have  sixty  days, 
after   the   grant   of  authorit}'-   to    occupy  and  use  such   park 

564 


Tit. VIII.]  TIME   TO   COMMENCE,    ETC.  §  1422 

or  reservation  for  such  intended  purpose,  within  which  to 
commence  the  excavation  or  construction  of  said  works; 
provided,  that  within  sixty  days  after  the  posting  of  said  no- 
tice of  appropriation,  as  provided  in  section  fourteen  hun- 
dred and  fifteen  of  the  Civil  Code,  the  claimant  shall  in  good 
faith  commence  (and  thereafter  diligently  and  continuously, 
except  when  temporarily  interrupted  by  snow  or  rain,  prose- 
cute to  completion)  such  surveys  and  other  work  as  under 
the  regulations  governing  such  park  or  reservation,  may  be 
required  as  preliminary  to,  or  for  use  with,  an  application 
for  such  authority;  and  provided  also  that  the  claimant  shall 
in  good  faith  on  completion  of  said  survey  and  preliminary 
work,  apply  to  the  officer,  board,  or  bodJ^  having  charge  of 
such  park  or  reservation,  for  such  authority,  and  shall  there- 
after, prosecute  said  application  with  reasonable  diligence. 

History:  Enacted  March  21,  1S72;  repealed  March  15,  1SS7, 
Stats,  and  Amdts.  1S87,  p.  114;  present  act,  which  is  entirely 
new,   passed  March    24,    1903,    Stats,   and   Amdts.    1903,   p.   397. 


565 


§§1424,1425  CIVIL  CODE.  [Div.II,Pt.IV. 


TITLE  IX. 

HYDRAULIC  MINING. 

§  1424.     Where   hydraulic    mining   can    be    carried    on. 
§  1425.     Meaning   of  hydraulic  mining. 

§  1424.  WHERE  HYDRAULIC  MINING  CAN  BE 
CARRIED  ON.  The  business  of  hydraulic  mining  may  be 
carried  on  within  the  state  of  California  wherever  and  when- 
ever the  same  can  be  carried  on  without  material  injury  to 
the  navigable  streams,  or  the  lands  adjacent  thereto. 

History:  Enacted  March  24,  1S93,  Stats,  and  Amdts.  1S93, 
p.    337. 

§  1425.  MEANING  OF  HYDRAULIC  MINING.  Hy- 
draulic mining,  within  the  meaning  of  this  title,  is  mining  by 
means  of  the  application  of  water,  under  pressure,  through 
a  nozzle,  against  a  natural  bank. 

History:  Enacted  March  24,  1S93,  Stats,  and  Amdts.  1893, 
p.    337. 


566 


Tit.X.]  LOCATING  MINES,   ETC.  §  1426 


[A  new  title  added  by  Act  of  legislature  March  13,  1909, 
(Stats,  and  Amdts.  1909,  p.  313),  to  take  effect  and  be  in  force 
on  and  after  July  1,  1909.] 

TITLE  X. 

LOCATING  MINING   CLAIMS,    TUNNEL   RIGHTS,   MILL-SITES, 

ETC. 

§  1426.  Who  may  locate  mining  claim,  etc.  Manner  of  loca- 
tion. 

§  1426a.     Locator    must    define   boundaries,    how. 

§  1426b.     Recording  copy   of   notice.     Fee   of  recorder. 

§  1426c.     Location  of  placer  claim.     How  made. 

§  1426d.      Same.     Recording  copy  of  notice.     Fee  of   recorder. 

§  1426e.  Locator  of  tunnel  right.  Posting  notice.  Contents 
of    notice. 

1  1426f.       Boundary    lines    of   tunnel.      How    established. 

§  1426g.     Recording    notice    of   tunnel    location.      Recorder's    fee. 

§  1426h.  Amended  notice  of  location.  Not  to  interfere  with 
existing  rights  of  others. 

§  14261.       Boundaries  established  by  mineral  surveyor. 

■§  1426J.  Mill  site  location.  By  proprietor  of  vein,  etc.  Amount 
of  land  and  manner  of  making. 

§  1426k.  Same.  Recording  copy  of  location  notice.  Fee  of 
recorder. 

§  14261.       Annual   work   or   improvements.      Amount   required. 

§  1426m.  Same.  AfHdavit,  contents  of.  Certified  copy  of  evi- 
dence of  performance. 

§  1426n.     Same.     Recording  affidavit.      Fee   for. 

§  1426o.  Co-owner.  Notice  to  delinquent  co-owner.  Proof  of 
service. 

§  1426p.  Record  of  location.  Evidence  of  same  force  as  origi- 
nal notice. 

§  1426q.  Record  of  instrument.?.  Certified  copies  admissible 
as    evidence. 

§  1426r.  Mining  district  rules  and  regulations.  Not  affected  by 
act. 

§  1426s.  Development  work.  Failure  or  neglect  to  perform  in 
manner   and   time   required.     Effect   of. 

Sec.   2.     Repealing  clause. 

567 


§§1426-1426b  CIVIL  code.  [Div.II.Pt.IV. 

§  1426.  WHO  MAY  LOCATE  MINING  CLAIM,  ETC. 
MANNER  OF  LOCATION.  Any  person,  a  citizen  of  the 
United  States,  or  who  has  declared  his  intention  to  become 
such,  who  discovers  a  vein  or  lode  of  quartz,  or  other  rock  in 
place,  bearing  gold,  silver,  cinnibar,  lead,  tin,  copper,  or  other 
valuable  deposit,  may  locate  a  claim  upon  such  vein  or  lode, 
by  defining  the  boundaries  of  the  claim,  in  the  manner  here- 
mafter  described,  and  by  posting  a  notice  of  such  location, 
at  the  point  of  discQvery,  which  notice  must  contain:  First — 
The  name  of.  the  lode  or  claim.  Second— The  name  of  the 
locator  or  locators.  Third — The  number  of  linear  feet  claimed 
in  length  along  the  course  of  the  vein,  each  way  from  the 
point  of  discovery,  with  the  width  on  each  side  of  the  center 
of  the  claim,  and  the  general  course  of  the  vein  or  lode,  as 
near  as  may  be.  Fourth — The  date  of  location.  Fifth — Such 
a  description  of  the  claim  by  reference  to  some  natural  ob- 
ject, or  permanent  monument,  as  will  identify  the  claim  lo- 
cated. 

Hi.story:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.   313. 


§  1426a.     LOCATOR    MUST    DEFINE    BOUNDARIES, 

HOW.  The  locator  must  define  the  boundaries  of  his  claim 
so  that  they  may  be  readily  traced,  and  in  no  case  shall  the 
claim  extend  more  than  fifteen  hundred  feet  along  the  course 
of  the  vein  or  lode,  nor  more  than  three  hundred  feet  on 
either  side  thereof,  measured  from  the  center  line  of  the 
vein  at  the  surface. 

History:      Enacted    March    13,    1909,    Stats,    and    Amdts.    1909, 
p.    314. 


§  1426b.  RECORDING  COPY  OF  NOTICE.  FEE  OF 
RECORDER.  Within  thirty  days  after  the  posting  of  his 
notice  of  location  upon  a  lode  mining  claim,  the  locator  shall 
record  a  true   copy  thereof  in   the   office   of   the   county  re  • 

568 


Tit.X.]  PLACER  CLAIM— LOCATION.       §§  1426c,  1426d 

corder  of  the  county  in  which  such  claim  is  situated,  for 
which  service  the  county  recorder  shall  receive  a  fee  of  one 
dollar. 

History:      Enacted    March    13,    1909,    Stats,    and    Amdts.    1909, 
p.    314. 


§  1426c.  LOCATION  OF  PLACER  CLAIM.  HOW 
MADE.  The  location  of  a  placer  claim  shall  be  made  in  the 
following  manner:  By  posting  thereon,  upon  a  tree,  rock  in 
place,  stone,  post  or  monument,  a  notice  of  location,  con- 
taining the  name  of  the  claim,  name  of  locator  or  locators, 
date  of  location,  number  of  feet  or  acreage  claimed,  such  a 
description  of  the  claim  by  reference  to  some  natural  ob- 
ject or  permanent  monument  as  will  identify  the  claim  lo- 
cated, and  by  marking  the  boundaries  so  that  they  may  be 
readily  traced;  provided,  that  where  the  United  States  sur- 
vey has  been  extended  over  the  land  embraced  in  the  loca- 
tion, the  claim  may  be  taken  by  legal  subdivisions  and  no 
other  reference  than  those  of  said  survey  shall  be  required 
and  the  boundaries  of  a  claim  so  located  and  described  need 
not  be  staked  or  monumented.  The  description  by  legal  sub- 
divisions  shall  be  deemed   the  equivalent  of  marking. 

Hi-story:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.    314. 


§  1426d.     SAME.     RECORDING     COPY     OF    NOTICE. 

FEE  OF  RECORDER.  Within  thirty  days  after  the  post- 
ing of  the  notice  of  location  of  a  placer  claim,  the  locator 
shall  record  a  true  copy  thereof  in  the  office  of  the  county 
recorder  of  the  county  in  which  such  claim  is  situated,  for 
which  service  the  recorder  shall  receive  a  fee  of  one  dollar. 

History:       Enacted    March    13,    1909,    Stats,    and    Amdts.    1909, 
p.    314. 

S69 


§§  1426e-1426h  CIVIL  CODE.  [Div.II,Pt.I V. 

§  1426e.  LOCATOR  OF  TUNNEL  RIGHT.  POSTING 
NOTICE.  CONTENTS  OF  NOTICE.  The  locator  of  a 
tunnel  right  or  location,  shall  locate  his  tunnel  right  or  lo- 
cation by  posting  a  notice  of  location  at  the  face  or  point  of 
commencement  of  the  tunnel,  which  must  contain:  First — 
The  name  of  the  locator  or  locators.  Second — The  date  of 
the  location.  Third — The  proposed  course  or  direction  of  the 
tunnel.  Fourth — A  description  of  the  tunnel,  with  reference 
to  some  natural  object  or  permanent  monument  as  shall 
identify  the   claim   or   tunnel   right. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.    314. 

§  1426f.  BOUNDARY  LINES  OF  TUNNEL.  HOW 
ESTABLISHED.  The  boundary  lines  of  the  tunnel  shall  be 
established  by  stakes  or  monuments  placed  along  the  lines 
at  an  interval  of  not  more  than  six  hundred  feet  from  the 
face  or  point  of  commencement  of  the  tunnel  to  the  ter- 
minus of  three  thousand  feet  therefrom. 

Hi.stor.v:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.    314. 

§  1426g.  RECORDING  NOTICE  OF  TUNNEL  LOCA- 
TION. RECORDER'S  FEE.  Within  thirty  days  after  the 
posting  the  notice  of  location  of  the  tunnel  right  or  location, 
the  locator  shall  record  a  true  copy  thereof,  in  the  office  of 
the  county  recorder  of  the  county  in  which  such  claim  is 
situated,  for  which  service  the  recorder  shall  receive  a  fee  of 
one  dollar. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.    314. 

§  1426h.  AMENDED  NOTICE  OF  LOCATION.  NOT 
TO  INTERFERE  WITH  EXISTING  RIGHTS  OF  OTH- 
ERS.    If  at  any  time  the  locator  of  any  mining  claim  here- 

570 


Tit.X.]  BOUNDARIES— MILL-SITE.  §§  1426i,  1426J 

tofore  or  hereafter  located,  or  his  assigns,  shall  apprehend 
that  his  original  location  notice  was  defective,  erroneous,  or 
that  the  requirements  of  the  law  had  not  been  complied  with 
before  filing;  or  in  case  the  original  notice  was  made  prior 
to  the  passage  of  this  act,  and  he  shall  be  desirous  of  secur- 
ing the  benefit  of  this  act,  such  locator,  or  his  assigns,  may 
file  an  additional  notice,  subject  to  the  provisions  of  this  act; 
provided,  that  such  amended  location  notice  does  not  inter- 
fere with  the  existing  rights  of  others  at  the  time  of  posting 
and  filing  such  amended  location  notice,  and  no  such  amend- 
ed location  notice  or  the  record  thereof,  shall  preclude  the 
claimant,  or  claimants  from  proving  any  such  title  as  he  or 
they  may  have  held  under  previous  locations. 

History:  Enacted  March  13,  1909,  Stats,  -and  Amdts.  1909, 
p.    315. 

§  14261.  •  BOUNDARIES  ESTABLISHED  BY  MINERAL 
SURVEYOR.  Where  a  locator,  or  his  assigns,  has  the 
boundaries  and  corners  of  his  claim  established  by  a  United 
States  deputy  mineral  surveyor,  or  a  licensed  surveyor  of  this 
state,  and  his  claim  connected  with  the  corner  of  the  public 
or  minor  surveys  of  an  established  initial  point,  and  incor- 
porates into  the  record  of  the  claim,  the  field  notes  of  such 
survey,  and  attaches  to  and  files  with  such  location  notice,  a 
certificate  of  the  surveyor,  setting  forth:  First,  that  said 
survey  was  actually  made  by  him,  giving  the  date  thereof; 
Second,  the  name  of  the  claim  surveyed  and  the  location 
thereof;  Third,  that  the  description  incorporated  in  the  de- 
claratory statement  is  sufficient  to  identify;  such  survey  and 
certificate  becomes  a  part  of  the  record,  and  such  record  is 
prima  facie  evidence  of  the  facts  therein  contained. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.    315. 

§  1426J.  MILL-SITE  LOCATION.  BY  PROPRIETOR 
OF  VEIN,  ETC.  AMOUNT  OF  LAND  AND  MANNER 
OF   MAKING.     The  proprietor  of  a  vein  or  lode  claim  or 

571 


§§  1426k-1426m  CIVIL  CODE.  [Div.II.Pt.IY. 

mine,  or  the  owner  of  a  quartz  mill  or  reduction  works,  or 
any  person  qualified  by  the  laws  of  the  United  States,  may 
locate  not  more  than  five  acres  of  non-mineral  land  as  a 
mill-site.  Such  location  shall  be  made  in  the  same  manner 
as  hereinbefore   required  for  locating  placer  claims. 

History:  Enacted  March  13,  J909,  Stats,  and  Amdts.  1909, 
p.    315. 

§  1426k.  SAME.  RECORDING  COPY  OF  LOCATION 
NOTICE.  FEE  OF  RECORDER.  The  locator  of  a  mill 
site  claim  or  location  shall,  within  thirty  days  from  the  date 
of  his  location,  record  a  true  copy  of  his  location  notice  with 
the  county  recorder  of  the  county  in  which  such  location  is 
situated,  for  whicli  service  the  recorder  shall  receive  a  fee  of 
one  dollar. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.    315. 

§  14261.  ANNUAL  WORK  OR  IMPROVEMENTS. 
AMOUNT  REQUIRED.  The  amount  of  work  done  or  im- 
provements made  during  each  year  to  hold  possession  of  a 
mining  claim  shall  be  that  prescribed  by  the  laws  of  the 
United  States,  to-wit:     One  hundred  dollars  annually. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.    315. 

§  1426m.  SAME.  AFFIDAVIT,  CONTENTS  OF.  CER- 
TIFIED   COPY    OF    EVIDENCE    OF    PERFORMANCE. 

Whenever  mine  owner,  compan}^  or  corporation  shall  have 
performed  the  labor  and  made  the  improvements  required 
by  law  upon  any  mining  claim,  the  person  in  whose  behalf 
such  labor  was  performed  or  improvements  made,  or  some 
one  in  his  behalf,  shall  within  thirty  daj's  after  the  time  lim- 
ited for  performing  such  labor  or  making  such  improve- 
ments  make   and   have   recorded   by   the   county  recorder,   in 

572 


Tit.X.]  AFFIDAVIT— RECORDING.       §§  I426n,  1426o 

books  kept  for  tliat  purpose,  in  the  county  in  which  such 
mining  claim  is  situated,  an  affidavit  setting  forth  the  value 
of  labor  or  improvements  made,  the  name  of  the  claim, 
and  the  name  of  the  owner  or  claimant  of  said  claim  at 
whose  expense  the  same  was  made  or  performed.  Such 
affidavit,  or  a  copy  thereof,  duly  certified  by  the  county  re- 
corder, shall  be  prima  facie  evidence  of  the  performance  of 
such  labor  or  the  making  of  such  improvements,  or  both. 

History:      Enacted    March    13,    1909,    Stats,    and    Amdts.    1909, 
p.    315. 


§  1426n.     SAME.     RECORDING       AFFIDAVIT,       FEE 

FOR.  For  recording  the  affidavit  herein  required,  the  county 
record-er  shall  receive  a  fee  of-  ten  cents  per  folio,  twenty 
cents  for  endorsement  and  ten  cents  for  indexing  the  name 
of  each   claim  aad   each  owner. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.  316;  amended  May  21,  1915,  Stats,  and  Amdts.  1915,  p.  734. 
lu    eirect    August    S,    1915. 


§  14260.  CO-OWNER.  NOTICE  TO  DELINQUENT 
CO-OWNER.  PROOF  OF  SERVICE.  Whenever  a  co- 
owner  or  co-owners  of  a  mining  claim  shall  give  a  delinquent 
co-owner  or  co-owners  the  notice  in  writing  or  notice  by 
publication  provided  for  in  section  twenty-three  hundred  and 
twenty-four,  Revised  Statutes  of  the  United  States,  an  affi- 
davit of  the  person  giving  such  notice,  stating  the  time,  place, 
manner  of  service,  and  by  whom  and  upon  whom  such  ser- 
vice was  made,  shall  be  attached  to  a  true  copy  of  such  no- 
tice, and  such  notice  and  affidavit  must  be  recorded  in  the 
office  of  the  county  recorder,  in  books  kept  for  that  purpose, 
in  the  county  in  which  the  claim  is  situated,  within  ninety 
days,  after  the  giving  of  such  notice;  for  the  recording  of 
which  said  recorder  shall  receive  the  same  fees  as  are  now 
allowed  by  law  for  recording  deeds; 

573 


§  14260  CIVIL  CODE.  [Div.II,Pt.IV. 

[Notice  by  publication — Proof  of  service.]  Or  if  such  no- 
tice is  given  by  publication  in  a  newspaper,  there  shall  be 
attached  to  a  printed  copy  of  such  notice  an  affidavit  of  the 
printer  or  his  foreman,  or  principal  clerk  of  such  paper,  stal- 
ing the  date  of  the  first,  last  and  each  insertion  of  such  no- 
tice therein,  and  where  the  newspaper  was  published  during 
that  time,  and  the  name  of  such  newspaper.  Such  affidavit 
and  notice  shall  be  recorded  as  aforesaid,  within  one  liundred 
and  eighty  days  after  the  first  publication  thereof. 

[Notice   and   certified    copy — Prima   facie    evidence.]     The 

original  of  such  notice  and  affidavit,  or  a  duly  certified  copy 
of  the  record  thereof,  shall  be  prima  facie  evidence  that  the 
delinquent  mentioned  in  section  twenty-three  hundred  and 
twenty-four  has  failed  or  refused  to  contribute  his  propor- 
tion of  the  expenditure  required  by  that  section,  and  of  the 
service  of  publication  of  said  notice;  provided,  the  writing 
or   affidavit  hereinafter  provided  for   is  not  of  record. 

[Contribution  by  co-owner — Payment  of  costs — Receipt  to 
delinquent.]  If  such  delinquent  shall,  within  the  ninety  days 
required  by  section  twenty-three  hundred  and  twenty-four, 
aforesaid,  contribute  to  his  co-owner  or  co-owners,  his  pro- 
portion of  such  expenditures,  and  also  all  costs  of  service 
of  the  notice  required  by  this  section,  whether  incurred  for 
publication  charges,  or  otherwise,  such  co-owner  or  co- 
owners  shall  sign  and  deliver  to  the  delinquent  or  delin- 
quents a  writing,  stating  that  the  delinquent  or  delinquents 
by  name  has  within  the  time  required  by  section  twenty- 
three    hundred   and    twenty-four    aforesaid,     contributed   his 

share  for  the  year   upon  the   mine,  and  further 

stating  therein  the  district,  county  and  state  wherein  the 
same  is  situated,  and  the  book  and  page  where  the  location 
notice  is  recorded,  if  said  mine  was  located  under  the  pro- 
visions of  this  act; 

[Receipt  to  co-owner  to  be  recorded — Fees.]  Such  writ- 
ing shall  be  recorded  in  the  office  of  the  county  recorder  of 

574 


Tit.X.]  RECORDING   LOCATION.  §§  1426p,  1426q 

said  county,  for  which  he  shall  receive  the  same  fees  as  are 
now  allowed  liy  law  for  recording  deeds. 

[Failure  to  give  co-owner  receipt — Penalty.]  If  such  co- 
owner  or  co-owners  shall  fail  to  sign  and  deliver  such  writ- 
ing to  the  delinquent  or  delinquents  within  twenty  days 
after  such  contribution,  the  co-owner  or  co-owners  so  fail- 
ing as  aforesaid  shall  be  liable  to  the  penalty  of  one  hun- 
dred dollars  to  be  recovered  by  any  person  for  the  use  of  the 
delinquent  or  delinquents  in  any  court  of  competent  juris- 
diction. 

[Failure  to  give  receipt — Affidavit  of  contribution.]  If 
such  co-owner  or  co-owners  fail  to  deliver  such  writing  with- 
in said  twenty  da3rs,  the  delinquent,  with  two  disinterested 
persons  having  personal  knowledge  of  such  contribution, 
may  inake  affidavit  setting  forth  in  what  manner,  the  amount 
of,  to  whom,  and  upon  what  mine,  such  contribution  was 
made.  Such  affidavit,  or  a  record  thereof,  in  the  office  of  the 
county  recorder,  of  the  county  in  which  such  mine  is  sit- 
uated, shall  be  prima  facie  evidence  of  such  contribution. 

Hixtorj-:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.   316. 

§  1426p.  RECORD  OF  LOCATION.  EVIDENCE  OF 
SAME  FORCE  AS  ORIGINAL  NOTICE.  The  record  of 
any  location  of  a  mining  claim,  mill  site  or  tunnel  right,  in 
the  office  of  the  county  recorder,  as  herein  provided  shall 
be  received  in  evidence,  and  have  the  same  force  and  effect 
in  the  courts  of  the  state  as  the  original  notice. 

HLstory:  Enacted  March  13,  1909,  Stats,  and  Amdt-s.  1909, 
p.   317. 

§  1426q.  RECORD  OF  INSTRUMENTS.  CERTIFIED 
COPIES  ADMISSIBLE  AS  EVIDENCE.  Copies  of  the 
records  of  all  instruments  required  to  be  recorded  by  the 
provisions  of  this  act,  duly  certified  by  the  recorder,  in  whose 
custody  such    records  are,   may  be    read   in  evidence,  under 

575 


§§  1426r,  1426s  CIVIL  CODE.  [Div.II,Pt.IV. 

the  same  circumstances  and  rules  as  are  now,  or  may  be 
hereafter  provided  by  law,  for  using  copies  of  instruments 
relating  to  real  estate,  duly  executed  or  acknowledged  or 
proved  and  recorded. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.  317. 

§  1426r.  MINING  DISTRICT  RULES  AND  REGULA- 
TIONS. NOT  AFFECTED  BY  ACT.  The  provisions"  of 
this  act  shall  not  in  any  manner  be  construed  as  affecting 
or  abolishing  any  mining  district  or  the  rules  and  regula- 
tions thereof  within  the   State  of  California. 

History:  Enacted  March  13.  1909,  Stats,  and  Amdts.  1909, 
p.   317. 

§  1426s.  DEVELOPMENT  WORK.  FAILURE  OR 
NEGLECT  TO  PERFORM  IN  MANNER  AND  TIME 
REQUIRED.  EFFECT  OF.  The  failure  or  neglect  of  any 
locator  of  a  mining  claim  to  perform  development  work  of 
the  character,  in  the  manner  and  within  the  time  required 
by  the  laws  of  the  United  States,  shall  disqualify  such  lo- 
cators from  relocatmg  the  ground  embraced  in  the  original 
location  or  mining  claim  or  any  part  thereof  under  the  min- 
ing laws,  within  three  years  after  the  date  of  his  original 
location  and  any  attempted  re-location  thereof  by  any  of  the 
original  locators   shall  render  such  location  void. 

[Repealing  clause.]  Sec.  2.  All  acts  and  parts  of  acts  in 
conflict  with   this  act,  are   hereby  repealed. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909, 
p.   317. 


576 


DIVISION  THIRD. 

Part  I.  Obligations   in   General,   §§  1427-1543. 

II.  Contracts,  §§  1549-1701. 

III.  Obligations   Imposed  by  Law,  §§1708-1715. 

IV.  Obligations    Arising    from    Particular    Transactions, 

§§  1721-3268. 


PART  I. 

OBLIGATIONS  IN  GENERAL. 
Title   I.     Definition  of  Obligations,  §§  1427-1428. 

II.     Interpretation  of  Obligations,  §§  1429-1451. 

III.  Transfer  of  Obligations,  §§  1457-1468. 

IV.  Extinction  of  Obligations,  §§  1473-1543. 


577 


Tits. I, II.]  OBLIGATIONS— HOW  INCURRED.      §§1427,1428 


TITLE  I. 
DEFINITION  OF  OBLIGATIONS. 

§  1427.      Obligation,    what. 

■§  1428.     How  incurred  and  enforced. 

§  1427.  OBLIGATION,  WHAT.  An  obligation  is  a  legal 
duty,  by  which  a  person  is  bound  to  do  or  not  to  do  a  cer- 
tain   thing. 

Hi-story:      Enacted   March   21,  1872. 

§  1428.  HOW  INCURRED  AND  ENFORCED.  An  ob- 
ligation arises  either  from: 

1.  The  contract  of  the  parties;  or, 

2.  The  operation  of  law. 

An  obligation  arising  from  operation  of  law  may  In-  en- 
forced in  the  manner  provided  by  law  or  by  civil  action  or 
proceeding. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4.   p.    239. 


TITLE  II. 

INTERPRETATION  OF  OBLIGATIONS. 

Cliapter   I.  General   Rules  of   Interpretation,   §  1429. 

II.  Joint   or   Several   Obligations,   §§  1430-1432. 

III.  Conditional    Obligations,    §§  1434-1442. 

IV.  Alternative    Obligations,  §§  1448-1451. 


579 


§§  1429-1431  CIVIL  CODE.  [Div.III,Pt.I. 


CHAPTER  I. 

GENERAL,  RULES  OF  INTERPRETATION. 
§  1429.     General  rules. 

§  1429.  GENERAL  RULES.  The  rules  which  govern 
the  interpretation  of  contracts  are  prescribed  by  part  two  of 
this  division.  Other  obligations  are  interpreted  by  the  same 
rules  by  which  statutes  of  a  similar  nature  are  interpreted. 

History:     Enacted  March  21,  1872. 


CHAPTER  II. 

JOINT    OR    SEVERAL    OBLIGATIONS. 

§  1430.     Obligations,    joint   or    several,    etc. 

§  1431.     When  joint. 

§  1432.     Contribution   between  joint  parties. 

§  1430.     OBLIGATIONS,   JOINT    OR   SEVERAL,   ETC. 

An  obligation  imposed  upon  several  persons,  or  a  right  cre- 
ated in  favor  of  several  persons,  may  be: 

1.  Joint; 

2.  Several;    or, 

3.  Joint  and  several. 

History:      Enacted  March   21,  1S72. 

§  1431.  WHEN  JOINT.  An  obligation  imposed  upon 
several  persons,  or  a  right  created  in  favor  of  several  per- 
sons, is  presumed  to  be  joint,  and  not  several,  except  in  the 

580 


Tit.II,ch.II.]  CONTRIBUTION.  §  1432 

special  cases  mentioned  in  the  title  on  the  interpretation  of 
contracts.  This  presumption,  in  the  case  of  a  right,  cal■^  be 
overcome  only  by  express  words  to  the  contrary. 

History:     Enacted  March   21,  1872. 

§  1432.  CONTRIBUTION  BETWEEN  JOINT  PAR- 
TIES. A  party  to  a  joint,  or  joint  and  several  obligation, 
who  satisfies  more  than  his  share  of  the  claim  against  all, 
may  require  a  proportionate  contribution  from  all  tlie  parties 
joined  with  him. 

History:     Enacted  March  21,  1872. 


581 


§§  1434-1438  CIVIL  code.  [Div.III,Pt.I. 


CHAPTER  III. 

CONDITIONAL    OBLIGATIONS. 

§  1434.  Obligation,   wlien    conditional. 

§  1435.  Conditions,  kinds  of. 

§  1436.  Conditions  precedent. 

§  1437.  Conditions   concurrent. 

§  1438.  Conditions  subsequent. 

§  1439.  Performance,   etc.,   of  conditions,  wlien   essential. 

§  1440.  When  performance,   etc.,   excused. 

§  1441.  Impossible   or   unlawful   conditions   void. 

§  14  42.  Conditions    involving   forfeiture,    how    construed. 

§  1434.     OBLIGATION,     WHEN     CONDITIONAL.     An 

obligation  is  conditional,  when  the  rights  or  duties  of  any 
party  thereto  depend  upon  the  occurrence  of  an  uncertain 
event. 

Hi.story:     Enacted  March   21,   1872. 

§  1435.  CONDITIONS,  KINDS  OF.  Conditions  may  be 
precedent,  concurrent  or  subsequent. 

History:     Enacted  March   21,   1872. 

§  1436.  CONDITIONS  PRECEDENT.  A  condition 
precedent  is  one  which  is  to  be  performed  before  some  right 
dependent  thereon  accrues,  or  some  act  dependent  thereon 
is  performed. 

History:     Enacted  March   21,   1S72. 

§  1437.  CONDITIONS  CONCURRENT.  Conditions 
concurrent  are  those  which  are  mutually  dependent,  and  are 
to  be  performed  at  the  same  time. 

Hifstory:     Enacted  March   21,   1872. 

§  1438.  CONDITION  SUBSEQUENT.  A  condition  sub- 
sequent is  one  referring  to  a  future  event,  upon  the  happen- 

582 


Tit.II,ch.III.]        PERFORMANCE— EXCUSED.  §§1439-1442 

ing  of  wliicli  the  obligation  becomes  no  longer  binding  upon 
the  other  party,  if  he  chooses  to  avail  himself  of  the  condi- 
tion. 

History:     Enacted  March  21,   1872. 

§  1439.  PERFORMANCE,  ETC.,  OF  CONDITIONS, 
WHEN  ESSENTIAL.  Before  any  party  to  an  obligation 
can  require  another  party  to  perform  any  act  under  it,  he 
must  fulfil  all  conditions  precedent  thereto  imposed  upon 
himself;  and  must  be  able  and  ofifer  to  fulfil  all  conditions 
concurrent  so  imposed  upon  him  on  the  like  fulfilment  by  the 
other  party,  except  as  provided  by  the  next  section. 

History:     Enacted  March   21,   1872. 

§  1440.     WHEN     PERFORMANCE,     ETC.,     EXCUSED. 

If  a  party  to  an  obligation  gives  notice  to  another,  before 
the  latter  is  in  default,  that  he  will  not  perform  the  same 
upon  his  part,  and  does  not  retract  such  notice  before  the 
time  at  which  performance  upon  his  part  is  due,  such  otiier 
party  is  entitled  to  enforce  the  obligation  without  previously 
performing  or  offering  to  perform  any  conditions  upon  his 
part  in  favor  of  the   former  party. 

Hi-story:      Enacted  March   21,   1872. 

§  1441.     IMPOSSIBLE  OR  UNLAWFUL  CONDITIONS 

VOID.     A   condition   in   a   contract,   the    fulfilment   of   which 
is  impossible  or  unlawful,  witliin   tlie  meaning  of  the  article 
on  the  object  of  contracts,  or  wliich  is  repugnant  to  the  na- 
ture of  the  interest  created  by   the  contract,  is  void. 
History:     Enacted  Marcli   21,   1872. 

§  1442.     CONDITIONS     INVOLVING     FORFEITURE, 

HOW  CONSTRUED.  A  condition  involving  a  forfeiture 
must  be  strictly  interpreted  against  the  party  for  whose 
benefit  it  is  created. 

History:     Enacted  March   21,   1872. 

583 


§§  1448-1451  CIVIL  CODE.  [Div.III,Pt.I. 


CHAPTER  IV. 

ALTERNATIVE    OBLIGATIONS. 

§  144S.  Who  has  the  right  of  selection. 

§  1449.  Right   of   selection,   how   lost. 

§  1450.  Alternative  indivisible. 

§  1451.  Nullity   of   one   or   more   of  alternative   obligations. 

§  1448.     WHO  HAS  THE  RIGHT  OF  SELECTION.     If 

an  obligation  requires  the  performance  of  one  of  two  acts, 
in  the  alternative,  the  party  required  to  perform  has  the 
right  of  selection,  unless  it  is  otherwise  provided  by  the 
terms  of  the  obligation. 

History:      Enacted  March   21,   1872. 

§  1449.     RIGHT  OF  SELECTION,  HOW  LOST.     If  the 

party  having  the  right  of  selection  between  alternative  acts 
does  not  give  notice  of  his  selection  to  the  other  party  with- 
in the  time,  if  any,  fixed  by  the  obligation  for  that  purpose, 
or,  if  none  is  so  fixed,  before  the  time  at  which  the  obligation 
ought  to  be  performed,  the  right  of  selection  passes  to  the 
other  party. 

History:      Enacted  March   21,   1S72. 

§1450.  ALTERNATIVES  INDIVISIBLE.  The  party 
having  the  right  of  selection  between  alternative  acts  must 
select  one  of  them  in  its  entirety,  and  cannot  select  part  of 
one  and  part  of  another  without  the  consent  of  the  other 
party. 

History;      Enacted  March   21,   1872. 

584 


Tit.II.ch.IV.]  NULLITY    OF    OBLIGATION.  §  1451 

§  1451.  NULLITY  OF  ONE  OR  MORE  OF  ALTER- 
NATIVE OBLIGATIONS.  If  one  of  the  alternative  acts 
required  by  an  obligation  is  such  as  the  law  will  not  enforce, 
or  becomes  unlawful  or  impossible  of  performance,  the  ob- 
ligation is  to  be  interpreted  as  though  the  other  stood  alone. 

History:      Enacted  March   21,   1872. 


585 


§§1457-1459  CIVIL  CODE.  [Div.III,Pt.I. 


TITLE  III. 

TRANSFER    OF    OBLIGATIONS. 

§  1457.  Burden   of  obJigation  not  transferable. 

§  1458.  Rights    arising    out    of   obligation    transferable. 

§1459.  Non-negotiable   instruments   may   be   transferred. 

§  1460.  Covenants  running  with  land^  what. 

§  1461.  What   covenants   run   with   land. 

§  1462.  Same.      [Covenant  for  benefit  of  property.] 

§  1463.  Same.      [Covenants   to   pay  rent,  etc.] 

§1464.  What     covenants     run     ■with     land     when     assigns     are 

named. 

§  14  65.  Wlio   are   bound  by   covenants. 

§  1466.  Who   are  not. 

§  1467.  Apportionment    of    covenants. 

§  146S.  Transfer   of   obligations;    covenants   to   run    with  land. 

§  1457.  BURDEN  OF  OBLIGATION  NOT  TRANS- 
FERABLE. The  burden  of  an  obligation  may  be  trans- 
ferred with  the  consent  of  the  party  entitled  to  its  benefit, 
but  not  otherwise,  except  as  provided  by  section  fourteen 
hundred  and  sixty-six. 

History:     Enacted  March   21,   1872. 


§  1458.  RIGHT  ARISING  OUT  OF  OBLIGATION 
TRANSFERABLE.  A  right  arising  out  of  an  obligation  is 
the  property  of  the  person  to  whom  it  is  due  and  may  be 
transferred  as  such. 

History:     Enacted  Marclr  21,   1872. 

§  1459.  NON-NEGOTIABLE  INSTRUMENTS  MAY 
BE  TRANSFERRED.  A  non-negotiable  written  contract 
for  the  payment  of  money  or  personal  property  may  be 
transferred  by  indorsement,  in  like  manner  with  negotiable 
instruments.     Such  indorsement  shall  transfer  all  the   rights 

586 


Tit. III.]  COVENANTS— WITH   LAND.  §§1460-1464 

of  the  assignor  under  the  instrument  to  the  assignee,  sub- 
ject to  all  equities  and  defenses  existing  in  favor  of  the 
maker  at  the  time  of  the  indorsement. 

Historj-:     Enacted  March   21,   1S72. 

§  1460.     COVENANTS       RUNNING       WITH       LAND, 

WHAT.  Certain  covenants,  contained  in  grants  of  estates 
in  real  property,  are  appurtenant  to  such  estates,  and  pass 
with  them,  so  as  to  bind  the  assigns  of  the  covenantor  and 
to  vest  in  the  assigns  of  the  covenantee,  in  the  same  manner 
as  if  they  had  personally  entered  into  tiiem.  Such  cove- 
nants are  said  to  run  with  the  land. 

History:     Enacted  March   21,   1872. 

§  1461.     WHAT  COVENANTS  RUN  WITH  LAND.    The 

only  covenants  which  run  with  tlie  land  arc  those  specified  in 
this  title,  and  those  which  are   incidental  thereto. 

History:     Enacted  March   21,   1872. 

§  1462.  SAME.  [COVENANT  FOR  BENEFIT  OF 
PROPERTY.]  Every  covenant  contained  in  a  grant  of  an 
estate  in  real  property,  which  is  made  for  the  direct  benefit 
of  the  property,  or  some  part  of  it  then  in  existence,  runs 
with   the  land. 

History:     Enacted  March   21,   1872. 

§  1463.     SAME.     [COVENANTS  TO  PAY  RENT,  ETC.] 

The  last  section  includes  covenants  "of  warranty."  "for  quiet 
enjoyment,"  or  for  further  assurance  on  the  part  of  a  grantor, 
and  covenants  for  the  payment  of  rent,  or  of  taxes  or  as- 
sessments upon  the  land,  on  the  part  of  the  grantee. 

History:     Enacted  March  21,   1872. 

§  1464.  WHAT  COVENANTS  RUN  WITH  LAND 
WHEN  ASSIGNS  ARE  NAMED.  A  covenant  for  the  ad- 
dition of  some  new  thing  to  real  property,  or  for  the  direct 
benefit  of  some  part  of  the  property  not  then  in  existence  or 

587 


§§  1465-1468  CIVIL  CODE.  [Div.III,Pt.I. 

annexed  thereto,  when  contained  in  a  grant  of  an  estate  in 
such  property,  and  made  by  the  covenantor  expressly  for 
his  assigns  or  to  the  assigns  of  the  covenantee,  runs  with 
land  so  far  only  as  the  assigns  thus  mentioned  are  concerned. 

History:     Enacted  March  21,   1872. 

§  1465.  WHO  ARE  BOUND  BY  COVENANTS.  A  cov- 
enant running  with  the  land  binds  those  only  who  acquire 
the  whole  estate  of  the  covenantor  in  some  part  of  the 
property. 

History:     Enacted  March  21,   1872. 

§  1466.  WHO  ARE  NOT.  No  one,  merely  by  reason  of 
having  acquired  an  estate  subject  to  a  covenant  running  with 
the  land,  is  liable  for  a  breach  of  the  covenant  before  he 
acquired  the  estate,  or  after  he  has  parted  with  it  or  ceased 
to  enjoy  its  benefits. 

History:     Enacted  March   21,   1872. 

§  1467.  APPORTIONMENT  OF  COVENANTS.  Where 
several  persons,  holding  by  several  titles,  are  subject  to  the 
burden  or  entitled  to  the  benefit  of  a  covenant  running  with 
the  land,  it  must  be  apportioned  among  them  according  to 
the  value  of  the  property  subject  to  it  held  by  them  re- 
spectively, if  such  value  can  be  ascertained,  and  if  not,  then 
accordipg  to  their  respective  interests  in  point  of  quantity. 
History:     Enacted  March  21,   1S72. 

§  1468.  TRANSFER  OF  OBLIGATIONS;  COVE- 
NANTS TO  RUN  WITH  LAND.  A  covenant  made  by  the 
owner  of  land  with  the  owner  of  other  land  to  do  or  re- 
frain from  doing  some  act  on  his  own  land,  which  doing  or 
refraining  is  expressed  to  be  for  the  benefit  of  the  land  of 
the  covenantee,  and  which  is  made  by  the  covenantor  ex- 
pressly for  his  assigns  or  to  the  assigns  of  the  covenantee, 
runs  with  both  of  such  parcels  of  land. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  19u5, 
p.   610. 

588 


Tit.IV.ch.I.]      PERFORMANCE  EXTINGUISHES.       §§  1473^  I474 

TITLE  IV. 

EXTINCTION    OF    OBLIGATIONS. 

Chapter  I.     Performance,   §§  1473-1479. 

II.     Offer  of  Performance,  §§  1485-1505. 

III.  Prevention    of    Performance    or    Offer,    §§  1511- 

1515. 

IV.  Accord   and   Satisfaction,   §§  1521-1524. 
V.     Novation,  §§  1530-1533. 

VI.     Release,  §§  1541-1543. 


CHAPTER  I. 

PERFORMANCE. 


1473 
1474 
1475 
1476 
1477 
1478 
1479, 


Obligation    extinguished    by    performance. 

Performance  by  one  of   several  joint  debtors. 

Performance   to  one  of  joint  creditors. 

Effect  of  directions  by  creditors. 

Partial  performance. 

Payment,    what. 

Application  of  general  performance. 


§  1473.  OBLIGATION  EXTINGUISHED  BY  PER- 
FORMANCE. Full  performance  of  an  obligation,  by  the 
party  whose  duty  it  is  to  perform  it,  or  by  any  other  per- 
son on  his  behalf,  and  with  his  assent,  if  accepted  by  the 
creditor,  extinguishes  it. 

History:  Enacted  Marcli  21,  1872;  amended  by  Code  Com- 
mission, Act  April  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  407, 
held   unconstitutional,   see  history,    §  4   ante. 

§  1474.  PERFORMANCE  BY  ONE  OF  SEVERAL 
JOINT  DEBTORS.     Performance  of  an  obligation,  by  one 

589 


§§1475-1478  CIVIL  CODE.  [Div.III.Pt.l. 

of    several    persons    who    are    jointly    liable    under    it,    extin- 
guishes  the   liability  of  all. 

History:     Enacted  March   21,   1S7L". 


§  1475.  PERFORMANCE  TO  ONE  OF  JOINT  CRED- 
ITORS. An  obligation  in  favor  of  several  persons  is  ex- 
tinguished by  performance  rendered  to  any  of  them,  except 
in  the  case  of  a  deposit  made  by  owners  in  common,  or  in 
joint  ownership,  which  is  regulated  by  the  title  on  deposit. 

History:     Enacted  March   21,   1872. 


§  1476.     EFFECT   OF  DIRECTIONS  BY   CREDITORS. 

If  a  creditor,  or  any  one  of  two  or  more  joint  creditors,  at 
any  time  directs  the  debtor  to  perform  his  obligation  in  a 
particular  manner,  the  obligation  is  extinguished  by  per- 
formance in  that  manner,  even  though  the  creditor  does  not 
receive  the  benefit  of  such  performance. 

History:     Enacted  March   21,   1S72. 


§  1477.  PARTIAL  PERFORMANCE.  A  partial  per- 
formance of  an  indivisible  obligation  extinguishes  a  corre- 
sponding proportion  thereof,  if  the  benefit  of  such  perform- 
ance is  voluntarily  retained  by  the  creditor,  but  not  other- 
wise. If  such  partial  performance  is  of  such  a  nature  that  the 
creditor  cannot  avoid  retaining  it  without  injuring  his  own 
property,  his  retention  thereof  is  not  presumed  to  be  vol- 
untary. 

History:     Enacted  March   21,   1S72. 


§  1478.     PAYMENT,    WHAT.     Performance    of    an    obli- 
gation for  the  delivery  of  money  only,  is  called  payment. 

History:     Enacted  March   21,  1872. 

590 


Tit.IV,ch.I.]  GENERAL   PERFORMANCE.  §  1479 

§  1479.  APPLICATION  OF  GENERAL  PERFORM- 
ANCE. Where  a  debtor,  under  several  obligations  to  an- 
other, does  an  act,  by  way  of  performance,  in  whole  or  in 
part,  which  is  equally  applicable  to  two  or  more  of  such  ob- 
ligations, such  performance  must  be  applied  as  follows: 

1.  If,  at  the  time  of  performance,  the  intention  or  desire 
of  the  debtor  that  such  performance  should  be  applied  to 
the  extinction  of  any  particular  obligation,  be  manifested  to 
the  creditor,  it  must  be  so  applied. 

2.  If  no  such  application  be  then  made,  the  creditor,  with- 
in a  reasonable  time  after  such  performance,  may  apply  it 
toward  the  extinction  of  any  obligation,  performance  of 
which  was  due  to  him  from  the  debtor  at  the  time  of  such 
performance;  except  that  if  similar  obligations  were  due  to 
him  both  individually  and  as  a  trustee,  he  must,  unless  other- 
wise directed  by  the  debtor,  apply  the  performance  to  the 
extinction  of  all  such  obligations  in  equal  proportion;  and  an 
application  once  made  by  the  creditor  cannot  be  rescinded 
without   the  consent  of   [the]    debtor. 

3.  If  neither  party  makes  such  application  within  the  time 
prescribed  herein,  the  performance  must  be  applied  to  the 
extinction  of  obligations  in  the  following  order;  and,  if  there 
be  more  than  one  obligation  of  a  particular  class,  to  the  ex- 
tinction of  all  in  that  class,  ratably: 

(1)  Of  interest  due  at  the  time  of  the  performance. 

(2)  Of  principal  due  at  that  time. 

(3)  Of  the  obligation  earliest  in  date  of  maturity. 

(4)  Of  an  obligation  not  secured  by  a  lien    or    collateral 

undertaking. 

(5)  Of  an  obligation  secured  by  a  lien  or  collateral  un- 

dertaking. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  239,  240;  amended  by  Code  Commission, 
Act  March  Ifi,  1901,  Stats,  and  Amdt.s.  1900-1,  p.  407,  held  un- 
constitutional, see  history,  §  4  ante. 

591 


§§1485,1486  CIVIL  CODE.  [Div.III.Pt.I. 


CHAPTER  II. 

OFFER  OF  PERFORMANCE. 

§  1485.  Obligation    extinguished    by    offer    of   performance. 

§  1486.  Offer   of   partial   performance. 

§  1487.  By  whom  to  be  made. 

§  1488.  To  whom  to  be  made. 

§  14S9.  Wliere  offer  may  be  made. 

I  1490.  When  offer  must  be  made. 

§  1491.  Same.      [When   obligation   does   not   fix   time.] 

§  1492.  Compensation   after   delay   in  performance. 

1  1493.  Offer   to   be  made   in   good   faith. 

§  1494.  Conditional  offer. 

§  1495.  Ability    and    willingness    essential. 

§  1496.  Production    of    thing    to   be    delivered   rot    necessary. 

§  1497.  Thing  offered  to  be  kept  separate. 

^  1498.  Performance  of  condition  precedent. 

§  1499.  Written   receipts. 

I  1500.  Extinction   of  pecuniary  obligation. 

§  1501.  Objections    to    mode    of   offer. 

?  1502.  Title   to  thing  offered. 

§  1503.  Custody  of  thing  offered. 

^  1604.  Effect  of  offer  on  accessories  of  obligation. 

§  1505.  Creditor's    retention    of    thing    which    he    refuses    to    ac- 
cept. 


§  1485.  OBLIGATION  EXTINGUISHED  BY  OFFER 
OF  PERFORMANCE.  An  obligation  is  extinguished  by  an 
offer  of  performance,  made  in  conformity  to  the  rules  herein 
prescribed,  and  with  intent  to  extinguish  the   obligation. 

History:      Enacted  March   21,   1872. 

§1486.  OFFER  OF  PARTIAL  PERFORMANCE.  An 
offer  of  partial  performance  is  of  no  efTect. 

History:     Enacted  March  21,   1872. 

592 


Tit.IV,ch.ll.]        OFP^ER— BY  AND  TO  WHOM.  §§1487-1490 

§  1487.  BY  WHOM  TO  BE  MADE.  An  oflfer  of  per- 
formance must  be  made  by  the  debtor,  or  by  some  person 
on  his  behalf  and  with  his  assent. 

History:      Enacted  March  21,   1S72. 

§  1488.  TO  WHOM  TO  BE  MADE.  An  offer  of  per- 
formance must  be  made  to  the  creditor,  or  to  any  one  of  two 
or  more  joint  creditors,  or  to  a  person  authorized  by  one  or 
more  of  them  to  receive  or  collect  what  is  due  under  the 
obligation,  if  such  creditor  or  authorized  person  is  present 
at  the  place  where  the  offer  may  be  made;  and  if  not, 
wherever  the  creditor  may  be  found. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Stats,    and    Amdts.    1873-4,   p.    240. 

§  1489.  WHERE  OFFER  MAY  BE  MADE.  In  the  ab- 
sence of  an  express  provision  to  the  contrary,  an  ofifer  of  per- 
formance may  be  made,  at  the  option  of  the  debtor: 

1.  At  any  place  appointed  by  the  creditor;  or, 

2.  Wherever  the  person  to  whom  the  offer  ought  to  be 
made   can   be   found;   or,  ' 

3.  If  such  person  cannot,  with  reasonable  diligence,  be 
found  within  this  state,  and  within  a  reasonable  distance  from 
his  residence  or  place  of  business,  or  if  he  evades  the  debtor, 
then  at  his  residence  or  place  of  business,  if  the  same  can, 
with  reasonable  diligence,  be  found  within  the  state;  or, 

4.  If  this  cannot  be  done,  then  at  any  place  within  this 
state. 

Historj-:     Enacted  March   21,  1872. 

§  1490.  WHEN  OFFER  MUST  BE  MADE.  Where  an 
obligation  fixes  a  time  for  its  performance,  an  offer  of  per- 
formance must  be  made  at  that  time,  within  reasonable 
hours,  and  not  before  nor  afterwards. 

History:     Enacted  March   21,  1872. 

593 


§§1491-1495  CIVIL  CODE.  [Div.III.Pt.I. 

§  1491.  SAME.  [WHEN  OBLIGATION  DOES  NOT 
FIX  TIME.]  Where  an  obligation  does  not  fix  the  time 
for  its  performance,  an  offer  of  performance  may  be  made 
at  any  time  before  the  debtor,  upon  a  reasonable  demand, 
has   refused  to   perform. 

Hi.«itory:     Enacted  March  21,   1872. 


§  1492.  COMPENSATION  AFTER  DELAY  IN  PER- 
FORMANCE. Where  delay  in  performance  is  capable  of 
exact  and  entire  compensation,  and  time  has  'not  been  ex- 
pressly declared  to  be  of  the  essence  of  the  obligation,  an 
offer  of  performance,  accompanied  with  an  offer  of  such 
compensation,  may  be  made  at  any  time  after  it  is  due,  but 
without  prejudice  to  any  rights  acquired  by  the  creditor,  or 
by  any  other  persons,  in  the  mean  time. 

History:     Enacted  March   21,  1872. 

§  1493.     OFFER  TO  BE  MADE  IN  GOOD  FAITH.     An 

offer  of  performance  must  be  made  in  good  faith,  and  in 
such  manner  as  is  most  likely,  under  the  circumstances,  to 
benefit  the  creditor. 

History:     Enacted  March   21,  1872. 

§  1494.  CONDITIONAL  OFFER.  An  offer  of  perform- 
ance must  be  free  from  any  conditions  which  the  creditor 
is  not  bound,  on  his  part,  to  perform. 

History:     Enacted  March   21,   1872. 

§  1495.     ABILITY   AND   WILLINGNESS   ESSENTIAL. 

An  offer  of  performance  is  of  no  effect  if  the  person  making 
it  is  not  able  and  willing  to  perform  according  to  the  offer. 

History:     Enacted  March   21,   1872. 

594 


Tit.IV,ch.Il.]     PRODUCTION   FOR   DELIVERY.         §§  1496-1501 

§  1496.  PRODUCTION  OF  THING  TO  BE  DELIV- 
ERED NOT  NECESSARY.  The  thing  to  be  delivered,  if 
any,  need  not  in  any  case  be  actually  produced,  upon  an 
ofifer  of  performance,   unless   the   offer   is   accepted. 

History:      Enacted  March    21,   1S72. 

§  1497.     THING  OFFERED  TO  BE  KEPT  SEPARATE. 

A  thing,  when  offered  by  way  of  performance,  must  not  be 
mixed  with  other  things  from  which  it  cannot  be  separated 
immediately  and  without  difficulty. 

Hi-story:     Enacted  March   21,  1S72. 

§  1498.  PERFORMANCE  OF  CONDITION  PRECE- 
DENT. \\  hen  a  debtor  is  entitled  to  the  performance  of  a 
condition  precedent  to,  or  concurrent  with,  performance  on 
his  part,  he  may  make  his  ofifer  to  depend  upon  the  due  per- 
formance  of   such   condition. 

History:      Enacted   March    21,   1S72. 

§  1499.  WRITTEN  RECEIPTS.  A  debtor  has  a  right  to 
require  from  his  creditor  a  written  receipt  for  any  property 
delivered  in  performance  of  his  obligation. 

Hi.story:     Enacted  March   21,   1872. 

§1500.  EXTINCTION  OF  PECUNIARY  .OBLIGA- 
TION. An  obligation  for  the  payment  of  money  is  extin- 
guished by  a  due  offer  of  payment,  if  the  amount  is  imme- 
diately deposited  in  the  name  of  the  creditor,  with  some 
bank  of  deposit  within  this  state,  of  good  repute,  and  no- 
tice thereof  is  given  to  the  creditor. 

History:     Enacted  March   21,   1872. 

§  1501.  OBJECTIONS  TO  MODE  OF  OFFER.  All  ob- 
jections to  the   mode  of  an  offer  of  performance,  which   the 

595 


§§1502-1505  CIVIL  CODE.  [Div.III,Pt.I. 

creditor  has  an  opportunity  to  state  at  the  time  to  the  per- 
son making  the  offer,  and  which  could  be  then  obviated  by 
him,  are  waived  by  the  creditor,  if  not  then  stated. 

History:     Enacted  March   21,  1872. 

§  1502.  TITLE  TO  THING  OFFERED.  The  title  to  a 
thing  duly  offered  in  performance  of  an  obligation  passes  to 
the  creditor,  if  the  debtor  at  the  time  signifies  his  intention 
to  that  effect. 

HLstory:     Enacted  March   21,   1872. 

§  1503.  CUSTODY  OF  THING  OFFERED.  The  per- 
son offering  a  thing,  other  than  money,  by  way  of  perform- 
ance, must,  if  he  means  to  treat  it  as  belonging  to  the  cred- 
itor, retain  it  as  a  depositary  for  hire,  until  the  creditor  ac- 
cepts it,  or  until  he  has  given  reasonable  notice  to  the  cred- 
itor that  he  will  retain  it  no  longer,  and,  if  with  reasonable 
diligence  he  can  find  a  suitable  depositary  therefor,  until  he 
has  deposited  it  with  such  person. 

History:     Enacted  March  21,  1872. 

§  1504.  EFFECT  OF  OFFER  ON  ACCESSORIES  OF 
OBLIGATION.  An  offer  of  payment  or  other  performance, 
duly  made,  though  the  title  to  the  thing  offered  be  not  trans- 
ferred to  the  creditor,  stops  the  running  of  interest  on  the 
obligation,  and  has  the  same  effect  upon  all  its  incidents  as 
a  performance  thereof. 

History:     Enacted  March   21,   1872. 

§  1505.  CREDITOR'S  RETENTION  OF  THING 
WHICH  HE  REFUSES  TO  ACCEPT.  If  anything  is  giv- 
en to  a  creditor  by  way  of  performance,  which  he  refuses 
to  accept  as  such,  he  is  not  bound  to  return  it  without  de- 
mand; but  if  he  retains  it,  he  is  a  gratuitous  depositary  ' 
thereof. 

History:     Enacted  March   21,   1872. 

596 


Tit.IV.ch.III.]       EXCUSING  PERFORMANCE.  §§1511,1212 


CHAPTER  III. 

PREVENTION  OF  PERFORMANCE  OR  OFFER. 

§  1511.  What   excuses  performance,    etc. 

§  1512.  EfEect  of  prevention   of  i)erformance. 

§  1513.  Same    [repealed]. 

§  1514.  Same.      [Ratable   portion    of   consideration,    when.] 

§  1515.  Effect  of  refusal  to  accept  performance  before  offer. 

§  1511.     WHAT  EXCUSES  PERFORMANCE,  ETC.  The 

want  of  performance  of  an  obligation,  or  of  an  offer  of  per- 
formance, in  whole  or  in  part,  or  any  delay  therein,  is  ex- 
cused by  the  following  causes,  to  fhe  extent  to  which  they 
operate: 

1.  When  such  performance  or  offer  is  prevented  or  delayed 
by  the  act  of  the  creditor,  or  by  the  operation  of  law,  even 
though  there  may  have  been  a  stipulation  that  this  shall  not 
be  an  excuse; 

2.  When  it  is  prevented  or  delayed  by  an  irresistible,  super- 
human cause,  or  by  the  act  of  public  enemies  of  this  state 
or  of  the  United  States,  unless  the  parties  have  expressly 
agreed  to  the  contrary;   or, 

3.  When  the  debtor  is  induced  not  to  make  it,  by  any  act 
of  the  creditor  intended  or  naturally  tending  to  have  that 
effect,  done  at  or  before  the  time  at  which  such  performance 
or  offer  may  be  made,  and  not  rescinded  before  that  time. 

History:     Enacted  March   21,  1872. 

§  1512.  EFFECT  OF  PREVENTION  OF  PERFORM- 
ANCE. If  the  performance  of  an  obligation  be  prevented 
by  the  creditor,  the  debtor  is  entitled  to  all  the  benefits 
which  he  would  have  obtained  if  it  had  been  performed  by 
both  parties. 

Histoo':  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   p.    240. 

597 


§§1513-1515  CIVIL  CODE.  [Div.III.Pt.I. 

§  1513.     SAME  [repealed]. 

History:  Enacted  March  21,  1S72;  repealed  March  30,  1874, 
Code   Amdts.    1S73-4,   p.    240. 

§  1514.  SAME.  [RATABLE  PORTION  OF  CONSID- 
ERATION, WHEN.]  If  performance  of  an  obligation  is 
prevented  by  any  cause  excusing  performance,  other  than 
the  act  of  the  creditor,  the  debtor  is  entitled  to  a  ratable  pro- 
portion of  the  consideration  to  which  he  would  have  been 
entitled  upon  full  performance,  according  to  the  benefit  which 
the  creditor  receives  from  the  actual  performance. 

History:      Enacted  March  21,  1872. 

§  1515.  EFFECT  OF  REFUSAL  TO  ACCEPT  PER- 
FORMANCE BEFORE  OFFER.  A  refusal  by  a  creditor 
to  accept  performance,  made  before  an  offer  thereof,  is 
equivalent  to  an  offer  and  refusal,  unless,  before  performance 
is  actually  due,  he  gives  notice  to  the  debtor  of  his  willing- 
ness to  accept  it. 

History:      Enacted  March  21,  1872. 


598 


Tit.IV,ch.IV.]      ACCORD  AND   SATISFACTION.  §§  1521-1524 


CHAPTER  IV. 

ACCORD    AND    SATISFACTION. 

§  1521.  Accord,    what. 

§  1522.  Effect   of  accord. 

§  1523.  Satisfaction,   what. 

§1524.  Part    performance. 

§  1521.  ACCORD,  WHAT.  An  accord  is  an  agreement 
to  accept,  in  extinction  of  an  obligation,  something  different 
from  or  less  than  that  to  which  the  person  agreeing  to  ac- 
cept is  entitled. 

History:  Enacted  March  21,  1872;  amended  March  .lO,  1S74, 
Code   Amdts.    1873-4,   p.   240. 

§  1522.  EFFECT  OF  ACCORD.  Though  the  parties  to 
an  accord  are  bound  to  execute  it,  yet  it  does  not  extinguish 
the  obligation  tnitil  it  is  fully  executed. 

History:      Enacted  March   21,   1872. 

§  1523.  SATISFACTION,  WHAT.  Acceptance,  by  the 
creditor,  of  the  consideration  of  an  accord  extinguishes  the 
obligation,  and  is  called  satisfaction. 

History:      Enacted  March   21,    1872. 

'  §  1524.  PART  PERFORMANCE.  Tart  performance  of 
an  obligation,  either  before  or  after  a  breach  thereof,  when 
expressly  accepted  by  the  creditor  in  writing,  in  satisfaction, 
or  rendered  in  pursuance  of  an  agreement  in  writing  for  that 
purpose,  though  without  any  new  consideration,  extinguishes 
the  obligation. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    241. 

599 


§§1530-1533  CIVIL  CODE.  [Div.III,Pt.]. 


CHAPTER  V. 

NOVATION. 

§  1530.  Novation,  what. 

■§  1531.  Modes   of  novation. 

§  1532.  Novation    a    contract. 

§  1533.  Rescission    of    novation. 

§  1530.  NOVATION,  WHAT.  Novation  is  the  substitu- 
tion of  a  new^  obligation  for  an  existing  one. 

History:     Enacted  March  21,   1872. 
( 

§1531.     MODES  OF  NOVATION.     Novation  is  made: 

1.  By  the  substitution  of  a  new  obligation  between  the 
same  parties,  with  intent  to  extinguish  the  old  obligation; 

2.  By  the  substitution  of  a  new  debtor  in  place  of  the  old 
one,  with  intent  to  release  the  latter;  or, 

3.  By  the  substitution  of  a  new  creditor  in  place  of  the  old 
one,  with  intent  to  transfer  the  rights  of  the  latter  to  the 
former. 

History:     Enacted  March   21,   1872. 

§  1532.  NOVATION  A  CONTRACT.  Novation  is  made 
by  contract,  and  is  subject  to  all  the  rules  concerning  con- 
tracts in  general. 

History:     Enacted  March   21,   1872. 

§  1533.  RESCISSION  OF  NOVATION.  When  the  obli- 
gation of  a  third  person,  or  an  order  upon  such  person,  is 
accepted  in  satisfaction,  the  creditor  may  rescind  such  ac- 
ceptance if  the  debtor  prevents  such  person  from  complying 

600 


Tit.IV.ch.V.]  RESCISSION  OF   NOVATION.  §  I533 

with  the  order,  or  from  fulfilling  the  obligation;  or  if,  at  the 
time  the  obligation  or  order  is  received,  such  person  is  in- 
solvent, and  this  fact  is  unknow^n  to  the  creditor,  or  if,  before 
the  creditor  can  with  reasonable  diligence  present  the  order 
to  the  person  upon  whom  it  is  given,  he  becomes  insolvent. 

History:      Enacted   March    21,    1872;    amended   March    30,    1874, 
Code   Amdts.    1873-4,   p.    241. 


601 


§§1541-1543  CIVIL  CODE.  [Div.III.Pt.I. 


CHAPTER  VI. 

RELEASE. 

§  1541.     Obligation    extingulsned    by    release. 

§  1542.     Certain    claims    not    affected   by    general    release. 

§  1543.     Release   of    [one   of]    several   joint   debtors. 

§  1541.  OBLIGATION  EXTINGUISHED  BY  RE- 
LEASE. An  obligation  is  extinguished  by  a  release  there- 
from given  to  the  debtor  by  the  creditor,  upon  a  new  con- 
sideration, or  in  writing,  with  or  without  new  consideration. 

History:     Enacted  March   21,   1872. 

§  1542.  CERTAIN  CLAIMS  NOT  AFFECTED  BY 
GENERAL  RELEASE.  A  general  release  does  not  extend 
to  claims  which  the  creditor  does  not  know  or  suspect  to 
exist  in  his  favor  at  the  time  of  executing  the  release,  which 
if  known  by  him  must  have  materially  affected  his  settle- 
ment with  the  debtor. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    241. 

§  1543.     RELEASE    OF    [ONE    OF]    SEVERAL    JOINT 

DEBTORS.  A  release  of  one  of  two  or  more  joint  debtors 
does  not  extinguish  the  obligations  of  any  of  the  others,  un- 
less they  are  mere  guarantors;  nor  does  it  affect  their  right 
to  contribution  from  him. 

History:     Enacted  March   21,   1872. 


602 


Tit.I,ch.I.]  CONTRACT— DEFINITION.  §  1549 


PART  II. 

CONTRACTS. 

Title  I.  Nature  of  a  Contract,  §§  1549-1615. 

11.  Manner  of   Creating  Contracts,   §§  1619-1629. 

III.  Interpretation   of   Contracts,  §§  1635-1661. 

IV.  Unlawful  Contracts,  §§  1667-1676. 

V.     Extinction  of  Contracts,  §§  1682-1701. 


TITLE  I. 
NATURE  OF  A  CONTRACT. 

Chapter     I.  Definition,  §§  1549,   1550. 

II.  Parties,  §§  1556-1559. 

III.  Consent,  §§  1565-1589. 

IV.  Object,  §§  1595-1599. 

V.     Consideration,  §§  1605-1615. 


CHAPTER  I. 

DEFINITION. 

§  1549.      Contract,    what. 

§  1550.      Essential   elements   of   contract. 

§  1549.     CONTRACT,   WHAT.      A    contract    is   an    agree- 
ment  to  do  or  not  to  do  a  certain   thing. 

History:      Enacted  March   21,   1872. 

603 


§  1550  CIVIL    CODE.  [Div.III.Pt.II. 

§  1550.     ESSENTIAL  ELEMENTS  OF  CONTRACT.     It 

is  essential  to  the   existence   of  a  contract  that   there   should 
be: 

1.  Parties  capable  of  contracting; 

2.  Their  consent; 

3.  A  lawful  object;  and, 

4.  A  sufficient  cause   or  consideration. 

History:     Enacted  March  21,   1S72. 


604 


Tit.I.ch.II.]  WHO   MAY   CONTRACT.  §§  1556-1559 


CHAPTER  II. 

PARTIES. 

§  1556.     Who    may    contract. 
§  1557.     Minors,   etc. 

§  1558.     Identification    of  parties   necessary. 

§  1559.     When    contract   for   benefit   of   third   person   may   be   en- 
forced. 

§  1556.  WHO  MAY  CONTRACT.  All  persons  are  cap- 
able of  contracting,  except  minors,  persons  of  unsound  mind, 
and  persons  deprived  of  civil  rights. 

History:      Enacted  March   21,   1872. 

§  1557.  MINORS,  ETC.  Minors  and  persons  of  unsound 
mind,  have  only  such  capacity  as  is  defined  by  part  one  of 
division  one  of  this  code. 

History:      Enacted  March   21,   1872. 

§  1558.  IDENTIFICATION  OF  PARTIES  NECES- 
SARY. It  is  essential  to  the  validity  of  a  contract  not  only 
that  the  parties  should  exist,  but  that  it  should  be  possible  to 
identify  them. 

History:     Enacted  March  21,  1S72. 

§  1559.  WHEN  CONTRACT  FOR  BENEFIT  OF 
THIRD  PERSON  MAY  BE  ENFORCED.  A  contract, 
made  expressly  for  the  benefit  of  a  third  person,  may  be  en- 
forced by  him  at  any  time  before  tlic  parties  thereto  rescind 
it. 

History:      Enacted  March  21,   1872. 


605 


§§1565,1566  CIVIL  CODE.  [Div.III,Pt.II. 


CHAPTER  III. 

CONSENT. 

§  1565.  Essentials   of  consent. 

§  1566.  Consent,    when   voidable. 

§  1567.  Apparent   consent,   when  not   free. 

§  1568.  When   deemed   to   have   been   obtained   by    fraud,   etc. 

§  1569.  Duress,  what. 

§  1570.  Menace,  what. 

§  1571.  Fraud,   actual   or  constructive. 

§  1572.  Actual   fraud,  what. 

§  1573.  Constructive  fraud. 

§  1574.  Actual  fraud  a  question  of  fact. 

§  1575.  Undue   influence^   what. 

§  1576.  Mistalce,  what. 

§  1577.  Mistake  of  fact. 

§  1578.  Mistake   of  law. 

§  1579.  Mistake   of  foreign   laws. 

§  1580.  Mutuality  of  consent. 

§  1581.  Communication  of  consent. 

§  1582.  Mode    of    communicating'    acceptance    of    proposal. 

§  1583.  When    communication   deemed   complete. 

§  1584.  Acceptance   by  performance   of  conditions. 

§  1585.  Acceptance   must  be   absolute. 

§  1586.  Revocation    of   proposal. 

§  1587.  Revocation,    how    made. 

§  1588.  Ralificatirn    of    contract,    void    for    want    of    consent. 

§  1589.  Assumption    rf   obligation   by   acceptance   of   benefits. 


§  1565.     ESSENTIALS   OF   CONSENT.     The   consent  of 
the  parties  to  a  contract  must  ber 

1.  Free; 

2.  Mutual;  and, 

3.  Communicated  by  each  to  the  other. 

HLstorj-:     Enacted  March   21.  1S72. 

§  1566.~CONSENT,     WHEN     VOIDABLE.      A     consent 
which    is    not    free    is    nevertheless    not    absolutely   void,   but 

606 


Tit.I,ch.III.]  CONSENT— FRAUD,   DURESS.  §§1567-1570 

may   be   rescinded   by   the   parties,   in    the   manner  prescribed 
by  the  chapter  on  rescission. 

HiiiJtorj-:     Enacted  March   21,   1872. 

§  1567.     APPARENT    CONSENT,   WHEN    NOT    FREE. 

An  apparent   consent   is  not   real     or     free     when     obtained 
through: 

1.  Duress; 

2.  Menace; 

3.  Fraud; 

4.  Undue  influence;  or, 

5.  Mistake. 

History:     Enacted  March   21,   1872. 

§  1568.  WHEN  DEEMED  TO  HAVE  BEEN  OB- 
TAINED BY  FRAUD,  ETC.  Consent  is  deemed  to  have 
been  obtained  through  one  of  the  causes  mentioned  in  the 
last  section  only  when  it  would  not  have  been  given  had 
such    cause   not  existed. 

History:     Enacted  March  21,  1872. 

§1569.     DURESS,  WHAT.     Duress  consists  in: 

1.  Unlawful  confinement  of  the  person  of  the  party,  or  of 
the  husband  or  wife  of  such  party,  or  of  an  ancestor,  de- 
scendant,  or  adopted  child  of  such   party,   husband,   or  wife; 

2.  Unlawful  detention  of  the  property  of  any  such  person; 
or, 

3.  Confinement  of  such  person,  lawful  in  form,  but  fraud- 
ulently obtained,  or  fraudulently  made  unjustly  harassing  or 
oppressive. 

History:     Enacted  March   21,  1872. 

§1570.     MENACE,  WHAT.     Menace  consists  in  a  threat: 
1.   Of   such    duress   as   is   specified   in    subdivisions   one   and 
three  of  the  last  section; 

607 


§§1571-1573  CIVIL  CODE.  [Div.lII,Pt.II. 

2.  Of  unlawful  and  violent  injury  to  the  person  or  prop- 
erty of  any  such  person  as  is  specified  in  the  last  section;  or, 

3.  Of  injury  to   the   character  of  any  such  person. 

History:     Enacted  March   21,   1872. 

§  1571.  FRAUD,  ACTUAL  OR  CONSTRUCTIVE.  Fraud 
is  either  actual  or  constructive. 

History:     Enacted  March  21,  1872. 

§  1572.  ACTUAL  FRAUD,  WHAT.  Actual  fraud,  within 
the  meaning  of  this  chapter,  consists  in  any  of  the  following 
acts,  committed  by  a  party  to  the  contract,  or  with  his  con- 
nivance, with  intent  to  deceive  another  party  thereto,  or  to 
induce  him  to  enter  into  the  contract: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by 
one  who  does  not  believe  it  to  be  true; 

2.  The  positive  assertion,  in  a  manner  not  warranted  by  the 
information  of  the  person  making  it,  of  that  which  is  not 
true,  though  he  believes  it  to  be  true; 

3.  The  suppression  of  that  which  is  true,  by  one  having 
knowledge  or  belief  of  the  fact; 

4.  A  promise  made  without  any  intention  of  performing  it; 
or, 

5.  Any  other  act  fitted  to  deceive. 

History:     Enacted  March   21,   1S72. 

§  1573.  CONSTRUCTIVE  FRAUD.  Constructive  fraud 
consists: 

1.  In  any  breach  of  duty  which,  without  an  actually  fraud- 
ulent intent,  gains  an  advantage  to  the  person  in  fault,  or  any 
one  claiming  under  him,  by  misleading  another  to  his  preju- 
dice, or  to  the  prejudice  of  any  one  claiming  under  him;  or, 

2.  In  any  such  act  or  omission  as  the  law  specially  de- 
clares to  be   fraudulent,  without  respect  to   actual   fraud. 

History:     Enacted  March   21,  1872. 

608 


Tit.I,ch.III.]      UNDUE  IXFLUEXCE— MISTAKE.        §§1574-1578 

§  1574.     ACTUAL   FRAUD    A    QUESTION     OF    FACT. 

Actual   fraud   is   always   a   question   of   fact. 

History:     Enacted  March   21.   1872. 

§  1575.  UNDUE  INFLUENCE,  WHAT.  Undue  influence 
consists: 

1.  In  the  use,  by  one  in  whom  a  confidence  is  reposed  by 
another,  or  who  holds  a  real  or  apparent  authority  over  him, 
of  such  confidence  or  authority  for  the  purpose  of  obtaining 
?n  unfair  advantage  over  him; 

2.  In  taking  an  unfair  advantage  of  another's  weakness  of 
mind;  or, 

3.  Tn  taking  a  grosslj-  oppressive  and  unfair  advantage 
of  another's  necessities   or  distress. 

Hi.storj-:     Enacted  March   21,   1872. 

§  1576.  MISTAKE,  WHAT..  Mistake  may  be  either  of 
tact   or   iaw. 

History:     Enacted  March   21,   1872. 

§  1577.  MISTAKE  OF  FACT.  Mistake  of  fact  is  a  mis- 
lake,  not  caused  by  the  neglect  of  a  legal  duty  on  the  part 
of  the  person  making  the  mistake,  and  consisting  in: 

1.  An  unconscious  ignorance  or  forgetfulness  of  a  fact 
past  or  present,  material  to  the  contract;  or, 

2.  Belief  in  the  present  existence  of  a  thing  material  to 
the  contract,  which  does  not  exist,  or  in  the  past  existence 
of  such  a  thing,  which  has  not  existed. 

History:     Enacted  March   21,   1872. 

§  1578.  MISTAKE  OF  LAW.  Mistake  of  law  constitutes 
a  mistake,  within  the  meaning  of  this  article,  only  when  it 
arises   from: 

20  609 


§§1579-1583  CIVIL  CODE.  [Div.lII.Pt.II. 

1.  A  misapprehension  of  the  law  by  all  parties,  all  sup- 
posing that  they  knew  and  understood  it,  and  all  making  sub- 
stantially the  same  mistake  as  to  the  law;  or, 

2.  A  misapprehension  of  the  law  by  one  party,  of  which 
the  others  are  aware  at  the  time  of  contracting,  but  which 
they   do    not   rectifj-. 

History:     Enacted  March   21,   1S72. 

§  1579.  MISTAKE  OF  FOREIGN  LAWS.  Mistake  of 
foreign  laws  is  a  mistake  of  fact. 

History:     Enacted  March   21',   1872. 

§  1580.  MUTUALITY  OF  CONSENT.  Consent  is  not 
mutual,  unless  the  parties  all  agree  upon  the  same  thing 
in  the  same  sense.  But  in  certain  cases  defined  by  the 
"chapter  on  interpretation,  they  are  to  be  deemed  so  to  agree 
without  regard  to  the  fact. 

Hi.story;     Enacted   March    21.   1S72. 

§  1581.  COMMUNICATION  OF  CONSENT.  Consent 
can  be  communicated  with  efifect,  only  by  some  act  or  omis- 
sion of  the  party  contracting,  by  which  he  intends  to  com- 
municate it,  or  which  necessarily  tends  to  such  communica- 
tion. 

Hi.story;     Enacted  March   21,  1872. 

§  1582.  MODE  OF  COMMUNICATING  ACCEPTANCE 
OF  PROPOSAL.  If  a  proposal  prescribes  any  conditions 
concerning  the  communication  of  its  acceptance,  the  pro- 
poser is  not  bound  unless  the}-  are  conformed  to;  but  in 
other  cases  any  reasonable  and  usual  mode  may  be  adopted. 

History:     Ei^acted  March   21.   1S72. 

\ 

§  1583.  WHEN  COMMUNICATION  DEEMED  COM- 
PLETE.    Consent   is   deemed   to   be   fully   communicated   be- 

610 


Tit. I, ch. III. 1  ACCEPTANCE— REVOCATION,    ETC.    §§1584-1587 

tween  the  parties  as  soon  as  the  party  accepting  a  proposal 
has  put  his  acceptance  in  the  course  of  transmission  to  the 
proposer,  in  conformity  to  the  last  section. 

Hi.«*tory:      Enuoted   March   21,   lcS72. 

§  1584.  ACCEPTANCE  BY  PERFORMANCE  OF  CON- 
DITIONS.  Performance  of  the  conditions  of  a  proposal,  or 
the  acceptance  of  the  consideration  offered  with  a  proposal, 
is  an  acceptance  of  the  proposal. 

Hi.story:      Enacted   March   21.   1S72. 

§  1585.  ACCEPTANCE  MUST  BE  ABSOLUTE.  An  ac- 
ceptance must  be  absolute  and  unqualified,  or  must  include 
in  itself  an  acceptance  of  that  character  which  the  proposer 
can  separate  from  the  rest,  and  which  will  conclude  the 
person  accepting.  A  qualified  acceptance  is  a  new  pro- 
posal. 

History;      Enacted   Marcli   21.   1S72. 

§  1586.     REVOCATION     OF    PROPOSAL.     A    proposal 

may  be  revoked  at  any  time  before  its  acceptance  is  com- 
municated to   the  proposer,  but  not  afterwards. 

Hiistory:     Enacted  March   21,   1ST2. 

§  1587.  REVOCATION,  HOW  MADE.  A  proposal  is 
revoked: 

1.  By  the  communication  of  notice  of  revocation    l)y    the 

proposer  to  the  other  party,  in  the  manner  prescribed  by 
sections  fifteen  hundred  and  eighty-one  and  fifteen  hundred 
and  eighty-three,  before  his  acceptance  has  been  com- 
municated to  the  former; 

2.  By  the  lapse  of  the  time  prescribed  in  such  proposal 
for  its  acceptance,  or  if  no  time  is  so  prescribed,  the  lapse 
of  a  reasonal)le  time  without  communication  of  the  accept- 
ance; 

611 


§§1588,1589  CIVIL  CODE.  [Div.III,Pt.II. 

3.  By  the  failure  of  the  acceptor  to  fulfil  a  condition 
precedent  to  acceptance;  or, 

4.  By  the  death  or  insanity  of  the  proposer. 

History:     Enacted  March   21,  1872. 

§  1588.  RATIFICATION  OF  CONTRACT,  VOID  FOR 
WANT  OF  CONSENT.  A  contract  which  is  voidable  solely 
for  want  of  due  consent,  may  be  ratified  by  a  subsequent 
consent. 

Hi.story:     Enacted  March   21,  1S72. 

§  1589.  ASSUMPTION  OF  OBLIGATION  BY  ACCEPT- 
ANCE OF  BENEFITS.  A  voluntary  acceptance  of  the 
benefit  of  a  transaction  is  equivalent  to  a  consent  to  all  the 
obligations  arising  from  it,  so  far  as  the  facts  are  known, 
or  ought  to  be  known,  to  the  person  accepting. 

History:     Enacted  March   21,  1872. 


612 


Tit.I.ch.IV.]  OBJECT  AND  REQUISITES.  §§  1595-1598 


CHAPTER  IV. 

OBJECT   OF   A    CONTRACT. 

§  1595.  Object,   what. 

§  1596.  Requisites  of  object. 

§  1597.  Impossibility,  M'hat. 

§  159S.  "When  contract  wholly  void. 

§1599.  When    contract    partially    void.   • 

§  1595.  OBJECT,  WHAT.  The  object  of  a  contract  is 
the  thing  which  it  is  agreed,  on  the  part  of  the  party  re- 
ceiving the  consideration,  to  do  or  not  to  do. 

History:     Enacted  March   21,   1S72. 

§  1596.  REQUISITES  OF  OBJECT.  The  object  of  a 
contract  must  be  lawful  when  the  contract  is  made,  and 
possible  and  ascertainable  b}-  the  time  the  contract  is  to  be 
performed. 

History:      Enacted  March   21,   187  2. 

§  1597.  IMPOSSIBILITY,  WHAT.  Everything  is  deemed 
possible  except  that  which  is  mipossible  in  tlie  nature  of 
things. 

Historj':     Enacted  March   21,   1872. 

.  §  1598.  WHEN  CONTRACT  WHOLLY  VOID.  Where 
a  contract  has  but  a  single  object,  and  such  object  is  un- 
lawful, whether  in  whole  or  in  part,  or  wholly  impossible 
of  performance,  or  so  vaguely  expressed  as  to  be  wholly 
unascertainablc,  the  entire  contract  is  void. 

History:      Enacted  March   21,   1872. 
613 


§1599  CIVIL    CODE.  [Div.III.Pt.II. 

§  1599.     WHEN      CONTRACT       PARTIALLY      VOID. 

Where  a  contract  has  several  distinct  objects,  of  which  one 
at  least  is  lawful,  and  one  at  least  is  unlawful,  in  whole 
or  in  part,  tlie  contract  is  void  as  to  the  latter  and  valid 
as  to  the  rest. 

History:     Enacted  March   21,   1S72. 


614 


Tit.I.ch.V.]      CONSIDERATION— LEGAL,    MORAL.    §§  1505,  1606 


CHAPTER  V. 

CONSIDERATION. 

§  1605.  Good    consideration,    what. 

§  1606.  How  far  legal  or  moral  obligation  is  a  good  considera- 
tiom 

§  1607.  Consideration    lawful. 

§  1608.  Effect  of  its  illegality. 

§  1609.  Consideration   executed   or   executory. 

§  1610.  Executory    consideration. 

§  1611.  How    ascertained. 

§  1612.  Effect   of   impossibility    of   ascertaining   consideration. 

§  1613.  Same.      [Possible    of   execution  on    face. J 

§  1614.  Written  instrument  presumptive  evidence  of  considera- 
tion. 

§1615.  Burden    of    proof    to    invalidate    suflficient    consideration. 

§  1605.  GOOD  CONSIDERATION,  WHAT.  Any  bene- 
fit conferred,  or  agreed  to  be  conferred,  upon  the  promisor, 
by  any  other  person,  to  which  thq  promisor  is  not  lawfully 
entitled,  or  any  prejudice  suffered,  or  agreed  to  be  suffered, 
l)y  such  person,  other  than  such  as  he  is  at  the  time  of 
consent  lawfully  bound  to  suffer,  as  an  inducement  to  the 
promisor,  is  a  good  consideration  for  a  promise. 

History:      Enacted  March   21,    IST2. 

§  1606.  HOW  FAR  LEGAL  OR  MORAL  OBLIGATION 
IS  A  GOOD  CONSIDERATION.  An  existing  legal  obliga- 
tion resting  upon  the  promisor,  or  a  moral  obligation  origin- 
ating in  some  benefit  conferred  tipon  the  promisor,  or 
prejudice  suffered  by  the  promisee,  is  also  a  good  considera- 
tion for  a  promise,  to  an  extent  coresponding  with  the  ex- 
tent of  the  obligation,  Intt  no  further  or  otherwise. 

Hi.<4tory:      Enacted   March   21,    1872. 
615 


§§1607-1612  CIVIL  CODE.  •  [Div.I]],Pt.II. 

§  1607.  CONSIDERATION  LAWFUL.  The  considera- 
tion of  a  contract  must  be  lawful  within  the  meaning  of 
section  sixteen  hundred  and  sixty-seven. 

-History:      Enacted  March   21,   1872. 

§  1608.  EFFECT  OF  ITS  ILLEGALITY.  If  any  part  of 
a  single  consideration  for  one  or  more  objects,  or  of  several 
considerations  for  a  single  object,  is  unlawful,  the  entire 
contract   is   void. 

History:      Enacted  March   21,   1872. 

§  1609.  CONSIDERATION  EXECUTED  OR  EXECU- 
TORY. A  consideration  may  be  executed  or  executory,  in 
whole  or  in  part.  In  so  far  as  it  is  executory  it  is  subject  to 
the  provisions  of  chapter  four  of  this   title. 

History:     Enacted  March   21,    1872. 

§1610.  EXECUTORY  CONSIDERATION.  When  a 
consideration  is  executory,  it  is  not  indispensable  that  the 
contract  should  specify  its  amount  or  the  means  of  ascertain- 
ing it.  It  may  be  left  to  the  decision  of  a  third  person, 
or   regulated  by  any   specified   standard. 

History:     Enacted  March   21,    1872. 

§  1611.  HOW  ASCERTAINED.  When  a  contract  does 
not  determine  the  amount  of  the  consideration,  nor  the 
method  by  which  it  is  to  be  ascertained,  or  when  it  leaves 
the  amount  thereof  to  the  discretion  of  an  interested  party, 
the  consideration  must  be  so  much  money  as  the  object  of 
the  contract  is  reasonably  worth. 

History:     Enacted  March   21,   1872. 

§  1612.  EFFECT  OF  IMPOSSIBILITY  OF  ASCER- 
TAINING CONSIDERATION.     Where  a  contract  provides 

616 


Tit.I.ch.V.]  POSSIBILITY    OF    EXECUTION.  §§  1613-1615 

an  exclusive  method  by  which  its  consideration  is  to  be 
ascertained,  which  method  is  on  its  face  impossible  of  execu- 
tion, the  entire  contract  is  void. 

History:      Enacted  March   2],   1S72. 

§  1613.     SAME.      [POSSIBLE     OF     EXECUTION     ON 

FACE.]  Where  a  contract  provides  an  exclusive  method  by 
which  its  consideration  is  to  be  ascertained,  which  method 
appears  possible  on  its  face,  but  in  fact  is,  or  becomes,  im- 
possible of  execution,  such  provision  only  is  void. 

History:     Enacted  March  21,   1S72. 

§  1614.  WRITTEN  INSTRUMENT  PRESUMPTIVE 
EVIDENCE  OF  CONSIDERATION.  A  written  instru- 
ment   is    presumptive    evidence    of    a    consideration. 

History:      Enacted  March   21,   1872. 

§  1615.  BURDEN  OF  PROOF  TO  INVALIDATE  SUF- 
FICIENT CONSIDERATION.  The  burden  of  showing  a 
want  of  consideration  sufficient  to  support  an  instrument  lies 
with  the  party  seeking  to  invalidate  or  avoid  it. 

History:      Enacted   March    21,    1872. 

Said  to  be  "not  quite  clear"  whetlier  this  section  appli'-s  to 
an  illegal  consideration,  by  Commissioner  Vanclief  in  Graham 
vs.    Lorimer,    83    Cal    173,    177,    23    Pac.    Rep.    286. 


617 


§§1619-1622  CIVIL  CODE.  [Div.III,Pt.II. 


TITLE   II. 

MANNER  OF  CREATING  CONTRACTS. 

§  1619.  Contracts,   express   or   Implied. 

S  1620.  Express    contract,    what. 

§  1621.  Implied    contract,    'what. 

§  1622.  What   contracts   may   be   oral, 

§  1623.  Contract    not    in    writing    through    fraud,    may    be    en- 
forced  against   fraudulent  party. 

§  1624.  What  contracts  must  be  in  writing. 

§  1625.  Effect   of  written   contracts. 

§  1626.  Contract  in   writing,   takes   effect   when. 

§  1627.  Provisions   of  chapter   on  transfers   of  real  property. 

§  162S.  Corporate  seal,  how  affixed. 

§  1629.  Provisions    abolishing    seals    made    applicable. 

§  1619.     CONTRACTS,     EXPRESS     OR     IMPLIED.     A 

contract  is  either  express  or  implied. 

History:      Enacted  March   21,   1872. 

§  1620.     EXPRESS     CONTRACT,    WHAT.     An     express 
contract  is  one,  the  terms  of  which  are  stated  in  words. 

History:      Enacted  March   21,   1872. 


§  1621.  IMPLIED  CONTRACT,  WHAT.  An  implied 
contract  is  one,  the  existence  and  terms  of  which  are  mani- 
fested by  condtict. 

History:      Enacted  March   21,   1872. 

§  1622.     WHAT    CONTRACTS     MAY     BE    ORAL.     All 

contracts  maj'  be  oral,  except  such  as  are  specially  required 
by  statute  to  be  in  writing. 

History:      Enacted  March   21.   1872. 

618 


Tit.II.]  CONTRACTS   IN   WRITING— FRAUD.   §§  1623,  1624 

§  1623.  CONTRACT  NOT  IN  WRITING  THROUGH 
FRAUD,  MAY  BE  ENFORCED  AGAINST  FRAUD- 
ULENT PARTY.  Where  a  contract,  which  is  required  by 
law  to  be  in  writing,  is  prevented  from  being  put  into  writ- 
ing l3y  the  fraud  of  a  party  thereto,  any  other  party  who  is 
l)y  such  fraud  led  to  believe  thai  it  is  in  writing,  and  acts 
upon  such  belief  to  his  prejudice,  may  enforce  it  against  the 
fraudulent  party. 

History:      Enacted  March   21,   1872. 


§  1624.     WHAT  CONTRACTS  MUST  BE  IN  WRITING. 

The  following  contracts  are  mvalid,  unless  the  same,  or 
some  note  or  memorandum  thereof,  is^  in  writing  and  sub- 
scribed by  the  party  to  be  charged,  or  by  his  agent: 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed 
within  a  year  from  the   making  thereof; 

2.  A  special  promise  to  answer  for  the  debt,  default,  or 
miscarriage  of  another,  except  in  the  cases  provided  for  in 
section   twenty-seven   hundred   and  ninety-four; 

3.  An  agreement  made  upon  consideration  of  marriage 
other  than  a  mutual  promise  to  marry; 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things 
in  action,  at  a  price  not  less  than  two  hundred  dollars,  un- 
less the  buyer  accepts  or  receives  part  of  such  goods  and 
chattels  or  the  evidences,  or  some  of  them,  of  such  things 
in  action,  or  pays  at  the  time  some  part  of  the  purchase 
money;  l)ut  wlien  a  sale  is  made  at  auction,  an  entry  by  the 
auctioneer  in  his  sale  book,  at  the  time  of  the  sale,  of  the 
kind  of  property  sold,  the  terms  of  the  sale,  the  price,  and 
the  names  of  the  purchaser  and  person  on  whose  account  the 
sale   is  made,  is  a  sufficient  memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  real  property,  or  of  an  interest 
therein;    and    such    agreement,    if   made    by   an    agent    of    the 

619 


§§1625-1627  CIVIL  CODE.  [Div.III.Pt.lI. 

party  sought  to  be  charged,  is  invalid,  unless  the  authority 
of  the  agent  is  in  writing,  subscribed  by  the  party  sought  to 
be  charged; 

6.  An  agreement  authorizing  or  employing  an  agent  or 
broker  to  purchase  or  sell  real  estate  for  compensation  or  a 
commission; 

7.  An  agreement  which  by  its  terms  is  not  to  be  performed 
during  the  lifetime  of  the  promisor,  or  an  agreement  to  de- 
vise or  bequeath  any  property,  or  to  make  an}-  provision  for 
any  person  by  will. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  241;  March  9,  1878,  Code  Amdts.  1877-8, 
p.  86;  by  Code  Commission,  Act  March  16,  1901,  Stats,  and 
Amdts.  1900-1,  p.  408,  held  unconstitutional,  see  history,  §  4 
ante;  amendment  re-enacted  Marcli  21,  1905.  Stats,  and  Amdts. 
1905,  p.   611. 

§  1625.  EFFECT  OF  WRITTEN  CONTRACTS,  The  ex- 
ecution of  a  contract  in  writing,  whether  the  law  requires  it 
to  be  written  or  not,  supersedes  all  the  negotiations  or  stip- 
ulations concerning  its  matter  which  preceded  or  accom- 
panied the  execution  of  the  instrument. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  408, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted   March    21,    1905,    Stats,   and   Amdts.    1905,    p.    611. 

§  1626.     CONTRACT   IN   WRITING,   TAKES   EFFECT 
WHEN.     A   contract   m  writing  takes   effect  upon   its   deliv- 
ery to  the  party  in  whose  favor  it  is  made,  or  to  his  agent. 
History:     Enacted  March   21,   1872. 

§  1627.     PROVISIONS  OF  CHAPTER  ON  TRANSFERS 
OF  REAL  PROPERTY.     The  provisions  of  the  chapter  on 
transfers  in  general,  concerning  the  delivery  of  grants,  abso- 
lute and  conditional,  apply  to  all  written  contracts. 
History:     Enacted  Marclt  21,   1872. 

620 


Tit.II.]      CORPORATE    SEAL — PROVISION'S,    ETC.  §§  1628,  1629 

§  1628.  CORPORATE  SEAL,  HOW  AFFIXED.  A  cor- 
porate or  official  seal  may  be  affixed  to  an  instrument  by  a 
mere  impression  upon  the  paper  or  other  material  on  which 
such  instrument  is,  written. 

Hi.story:      Enacted  March   21,   1872. 

§  1629.     PROVISIONS    ABOLISHING     SEALS    MADE 

APPLICABLE.      All    distinctions    between    sealed    and    un- 
healed instruments  are  abolished. 

History:     Enacted  March  21,   1872. 


621 


§§1635,1636  CIVIL  CODE.  -Div.III.Pt.II. 


TITLE   III. 

INTERPRETATION  OF  CONTRACTS. 

§  1635.  Uniformity    of    interpretation. 

§  1636.  Contracts,    how    to    be    interpreted. 

§  1637.  Intention   of  parties,   how   ascertained. 

§  163S.  Intention    to    be    ascertained    from    language. 

§  1639.  Interpretation   of  written  contracts. 

§  1640.  Writing,    when    disregarded. 

§  1641.  Effect  to  be   given   to   every  part  of  contract. 

§  1642.  Several  contracts,  when  taken   together. 

§  1643.  Interpretation  in  favor  of  contract. 

§  1644.  "Words  to  be  understood   in   usual   sense. 

§  1645.  Technical    words. 

§  1646.  Law    of   place. 

§  1647.  Contracts   explained  by  circumstances. 

§  1648.  Contract  restricted  to  its  evident  object. 

§  1649.  Interpretation     in     sense     in     which     promisor     believed 

proinisee   to   rely. 

§  1650.  Particular    clause    subordinate    to    general    intent. 

§  1651.  Contract,    partly    written    and  partly    printed. 

§  1652.  Repugnancies,  how  reconciled. 

§  1653.  Inconsistent    words    rejected. 

§  1654.  Words   to   be   taken   most   strongly    against   whom. 

§  1655.  Reasonable    stipulations,    when    implied. 

§  1656.  Necessary   incidents   implied. 

§  1657.  Time    of   performance    of   contract. 

§  1658.  Time,   when   of   essence    [repealed]. 

§  1659.  When   joint   and  several. 

§  1660.  Same.      [In   singular   number.] 

§  1661.  Executed  and  executory  contracts,  what. 

§  1635.     UNIFORMITY    OF    INTERPRETATION.     .Ml 

contracts,  wlicthcr  public  or  private,  are  to  be  interpreted  by 
the  same  rules,  except  as   ctherwise   provided   by  this  code. 

History:      Enacted  March   21,   1872. 

§  1636.     CONTRACTS,  HOW  TO   BE  INTERPRETED. 

A   contract   nuisc   be   so   interpreted   as   to   give   effect   to   the 

622 


Tit. 111.]  INTENTION — INTERPRETATION.        §§1637-1641 

mutual   intention   of  the   parties  as  it   existed  at   the    time   of 
contracting,   so   far  as   tlie   same  is  ascertainable   and   lawful. 

History:      Enacted  March   21,   1872. 

§  1637.  INTENTION  OF  PARTIES,  HOW  ASCER- 
TAINED. For  the  purpose  of  ascertaining  the  intention  of 
the  parties  to  a  contract,  if  otherwise  doubtful,  the  rules  given 
in  this  chapter  are  to  be  applied. 

Hi-story:      Enacted  March   21,   1872. 

§  1635.  INTENTION  TO  BE  ASCERTAINED  FROM 
LANGUAGE.  The  language  of  a  contract  is  to  govern  its 
interpretation,  if  the  language  is  clear  and  explicit,  and  does 
not  involve  an  absurdity-. 

History:      Enacted  March   21,   1872. 

§  1639.  INTERPRETATION  OF  WRITTEN  CON- 
TRACTS. When  a  contract  is  reduced  to  writing,  the  in- 
tention of  the  parties  is  to  be  ascertained  from  the  writing 
alone,  if  possible;  subject,  liowever,  to  the  other  provisions 
cf  this  title. 

History:      Enacted  March   21,   1872. 

§  1640.  WRITING,  WHEN  DISREGARDED.  When 
through  fraud,  mistake,  or  accident,  a  written  contract  fails 
to  express  the  real  intention  of  the  parties,  such  intention  is 
to  be  regarded,  and  the  erroneous  parts  of  the  writing  dis- 
regarded. 

History:      Enacted   March   21,   1872. 

§  1641.  EFFECT  TO  BE  GIVEN  TO  EVERY  PART 
OF  CONTRACT.  The  whole  of  a  contract  is  to  be  taken 
togetiier,  so  as  to  give  efifect  to  every  part,  if  reasonably 
practicable,  each  clause  helping  to  interpret  the  other. 

History:     Enacted  March   21,  1872. 

623 


§§1642-1646  CIVIL  CODE.  [Div.ITI.Pt.Il. 

§  1642.  SEVERAL  CONTRACTS,  WHEN  TAKEN  TO- 
GETHER.  Several  contracts  relating  to  the  same  matters, 
between  the  same  parties,  and  made  as  parts  of  substantially 
one  transaction,  are  to  be  taken  together. 

History:     Enacted  March   21,   1S72. 


§  1643.  INTERPRETATION  IN  FAVOR  OF  CON- 
TRACT. A  contract  must  receive  such  an  interpretation  as 
will  make  it  lawful,  operative,  definite,  reasonable,  and  cap- 
able of  being  carried  into  effect,  if  it  can  be  done  without 
violating  the  mtention  of  the  parties. 

History:     Enacted  March   21,   1S72. 


§  1644.  WORDS  TO  BE  UNDERSTOOD  IN  USUAL 
SENSE.  The  words  of  a  contract  are  to  be  understood  in 
their  ordinary  and  popular  sense,  rather  than  accordmg  tu 
I  heir  strict  legal  meaning;  unless  used  by  the  parties  in  a 
technical  sense,  or  unless  a  special  meaning  is  given  to  them 
by  usage,  in  which   case   the  latter  must  be  followed. 

History:     Enacted   March   21,   1S72. 

§  1645.  TECHNICAL  WORDS.  Technical  words  are  to 
be  interpreted  as  usually  understood  by  persons  in  the  pro- 
fession or  business  to  which  they  relate,  unless  clearly  uSed 
in  a  different  sense. 

History:     Enacted  March   21,   1S72. 


§  1646.  LAW  OF  PLACE.  A  contract  is  to  be  interpreted 
according  to  the  law  and  usage  of  the  place  where  it  is  to  be 
performed;  or.  if  it  does  not  indicate  a  place  of  performance, 
according  to  the  law"  and  usage  of  the  place  where  it  is  made. 

History:     Enacted  March  21,  1872. 
624 


Tit. III.]  EXPLANATION— RESTFIICTION.         §§  1647-1651 

§  1647.  CONTRACTS  EXPLAINED  BY  CIRCUM- 
STANCES. A  contract  may  be  explained  by  reference  lo 
the  circumstances  under  which  it  was  made,  and  the  matter 
to  which  it  relates. 

History:      Enacted  March   21,   1X72. 


§  1648.     CONTRACT  RESTRICTED  TO  ITS  EVIDENT 

OBJECT.  However  broad  may  be  the  terms  of  a  contract,  it 
extends  only  to  those  things  concerning  which  it  appears  that 
the  parties  intended  to  contract. 

History:     Enacted  March   21,  1872. 

§  1649.  INTERPRETATION  IN  SENSE  IN  WHICH 
PROMISOR  BELIEVED  PROMISEE  TO  RELY.  If  thr: 
terms  of  a  promise  are  in  any  respect  ambiguous  or  uncer- 
tain, it  must  be  interpreted  in  the  sense  in  which  the  promisor 
believed,  at  the  time  of  making  it.  that  the  promisee  under- 
stood it. 

Hi.story:     Enacted  March   21,   1872. 

§  1650.  PARTICULAR  CLAUSES  SUBORDINATE 
TO  GENERAL  INTENT.  Particular  clauses  of  a  contract 
are  subordinate  to  its  general  intent. 

History:     Enacted  March   21,   1872. 

§  1651.  CONTRACT,  PARTLY  WRITTEN  AND 
PARTLY  PRINTED.  Where  a  contract  is  partly  written 
and  partly  printed,  or  where  part  of  it  is  written  or  printed 
under  the  special  directions  of  the  parties,  and  with  a  special 
view  to  their  intention,  and  the  remainder  is  copied  from  a 
form  originally  prepared  without  special  reference  to  the 
particular  parties  and  the  particular  contract  in  question,  the 
written  parts  control  the  printed  parts,  and  the  parts  which 

625 


§§1652-1655  CIVIL  CODE.  iDiv.IIl.Pt.II. 

are  purely  original  control  those  which  are  copied  from  a 
form.  And  if  the  two  are  absolutely  repugnant,  the  latter 
must  be  s©  far  disregarded. 

History:     Enacted  March   21,   1S72. 

§  1652.  REPUGNANCIES,  HOW  RECONCILED.  Re- 
pugnancy in  a  contract  must  be  reconciled,  if  possible,  by  such 
an  interpretation  as  will  give  some  effect  to  the  repugnant 
clauses,  subordinate  to  the  general  intent  and  purpose  of  the 
whole  contract. 

History:     Enacted  March   21,   1872. 

§  1653.  INCONSISTENT  WORDS  REJECTED.  Words 
in  a  contract  which  are  wholly  inconsistent  with  its  nature, 
or  with  the  main  intention  of  the  parties,  arc  to  be  rejected. 

History:     Enacted  March   21,   187  2. 


§  1654.  WORDS  TO  BE  TAKEN  MOST  STRONGLY 
AGAINST  WHOM.  In  cases  of  uncertainty  not  removed 
by  the  preceding  rules,  the  language  of  a  contract  should 
be  interpreted  most  strongly  against  the  party  Vv-ho  caused 
the  uncertainty  to  exist.  The  promisor  is  presumed  to  be 
such  party;  except  in  a  contract  between  a  public  officer  or 
body,  as  such,  and  a  private  parly,  in  which  it  is  presumed 
that  all  uncertainty  was  caused  by  the  private  party. 

Hifstory:     Enacted  March   21,   1872. 

§  1655.  REASONABLE  STIPULATIONS,  WHEN  IM- 
PLIED. Stipulations  which  are  necessary  to  make  a  con- 
tract reasonable,  or  conformable  to  usage,  are  implied,  in 
respect  to  matters  concerning  which  the  contract  manifests 
no  contrary   intention. 

History:     Enacted  March  21,  1872. 

626 


Tit. III.]  INCIDENTS— TIME— JOINT,   ETC.        §§  1656-1661 

§  1656.  NECESSARY  INCIDENTS  IMPLIED.  Ali 
things  that  in  law  or  usage  are  considered  as  incidental  to  a 
contract,  or  as  necessary  to  carry  it  into  eflfect,  are  implied 
therefrom,  unless  some  of  them  are  expressly  mentioned 
therein,  when  all  other  things  of  the  same  class  are  deemed 
to  be  excluded. 

Hitstory:      Enacted  March   21,   1S72. 

§  1657.     TIME   OF    PERFORMANCE    OF   CONTRACT. 

If  no  time  is  specified  for  the  performance  of  an  act  required 
to  be  performed,  a  reasonaijle  time  is  allowed.  If  the  act 
is  in  its  nature  capable  of  being  done  instantly — as,  for  ex- 
ample, if  it  consists  in  the  payment  of  money  only — it  must 
be  performed  immediately  upon  the  thing  to  be  done  being 
exactly  ascertained. 

History:      Enacted  March   21,  1872. 

§1658.     TIME,   WHEN   OF   ESSENCE    [repealed]. 

History:  Enacted  March  21,  1S72;  repealed  March  •'50,  1S74, 
Code   Amdts.    1S73-4,   p.    242. 

§  1659.  WHEN  JOINT  AND  SEVERAL.  Where  all  the 
parties  who  unite  in  a  promise  receive  some  benefit  from  the 
consideration,  whether  past  or  present,  their  promise  is  pre- 
sumed to  be  joint  and  several. 

History:      Enacted   March   21,   1872. 

§  1660.     SAME.     [IN   SINGULAR  NUMBER.]     A  prom- 
ise,  made   in    the   singular    number,    but   executed    by   several 
persons,   is   presumed  to   be  joint  and   several. 
Histor>-:      Enacted  March   21,   1872. 

§  1661.     EXECUTED        AND        EXECUTORY        CON- 
TRACTS,  WHAT.     An    executed    contract   is    one,    the    ob- 
ject of  which  is  fully  performed.     All  others  are  executory. 
History:      Enacted  March   21,   1872. 
627 


§§  1667-1669 


CIVIL    CODE. 


[Div.III.Pt.II. 


§  1667 
§  166S 
§  1669 
§  1670 
§  1671 
§  1672 
§  1673 
§  1674 
§  1675 
§  1676 


TITLE   IV. 

UNLA^^FUL    CONTRACTS. 

What    is    unlawful. 

Certain  contracts  unlawful. 

Penalties   void    [repealed]. 

Contract  fixing  damages,  void. 

Exception. 

Restraints    upon    legal    proceedings    [repealed]. 

Contract   in    restraint   of   trade,   void. 

Exception  in   favor  of  sale  of  good-will. 

Exception    in    favor    of   partnership    arrangements. 

Contract    in    restraint    of    marriage,    void. 


§  1667.     WHAT    IS    UNLAWFUL.     That    is    not    lawful 
which  is : 

1.  Contrary  to  an  express  provision  of  law; 

2.  Contrary  to  the  policy  of   express  law,   though   not  ex- 
pressly prohibited;   or, 

3.  Otherwise   contrary  to  good  morals.  \ 

History:      Enacted  March   21,   1872. 

§  1668.     CERTAIN      CONTRACTS      UNLAWFUL.     AH 

contracts  which  have  for  their  object,  directly  or  indirectly, 
to  exempt  any  one  from  responsibility  for  his  own  fraud,  or 
wilful  injury  to  the  person  or  property  of  another,  or  viola- 
tion of  law,  whether  wilful  or  negligent,  are  against  the  pol- 
icy of  the   law. 

History:      Enacted  March  21,   1872. 


§1669.     PENALTIES  VOID   [repealed]. 

History:      Enacted    March    21,    1872;    repealed    March    30.    1874, 
Code   Amdts.    1S73-4,   p.    242. 


628 


Tit. IV.]  FIXING   DAMAGES — EXCEPTIONS.      §§  1670-1674 

§  1670.  CONTRACT  FIXING  DAMAGES,  VOID,  Ev- 
ery contract  by  which  the  amount  of  damage  to  be  paid,  or 
other  compensation  to  be  made,  for  a  breach  of  an  obligation, 
is  determined  in  anticipation  thereof,  is  to  that  extent  void, 
except  as  expressly  provided  in  the  next  section. 

HLstory:      Enacted  March   21,    1ST2. 


§  1671.  EXCEPTION.  The  parties  1o  a  contract  may 
agree  therein  upon  an  amount  which  shall  be  presumed  to  be 
the  amount  of  damage  sustained  by  a  breach  thereof,  when, 
from  the  nature  of  the  case,  it  would  be  impracticable  or  ex- 
tremely difficult  to  fix  the  actual   damage. 

History:      Enacted  March  21,   1S72. 

§  1672.  RESTRAINTS  UPON  LEGAL  PROCEED- 
INGS  [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1S74, 
Code   Amdts.    1S73-4,   p.    242. 

§  1673.     CONTRACT     IN     RESTRAINT     OF   TRADE, 

VOID.  Every  contract  by  which  any  one  is  restrained  from 
exercising  a  lawful  profession,  trade,  or  business  of  any 
kind,  otherwise  than  is  provided  by  the  next  two  sections, 
is  to  that  extent  void. 

History:      Enacted  March   21,    1S72. 


§  1674.  EXCEPTION  IN  FAVOR  OF  SALE  OF  GOOD- 
WILL. One  who  sells  the  good  will  of  a  business  may  agree 
with  the  buyer  to  refrain  from  carrying  on  a  similar  business 
within  a  specified  county,  city,  or  a  part  thereof,  so  long  as 
the  buyer,  or  any  person  deriving  title  to  the  good-will  from 
him,  carries  on  a  like  business  therein. 

History:      Enacted  March   21,   1S72. 

629 


§§1675,1676  CIVIL. CODE.  fDiv.III,Pt.II. 

§  1675.  EXCEPTION  IN  FAVOR  OF  PARTNERSHIP 
ARRANGEMENTS.  Partners  m&y,  upon  or  in  anticipation 
of  a  dissolution  of  the  partnership,  agree  that  none  of  them 
will  carry  on  a  similar  business  within  the  same  city  or  town 
where  the  partnership  business  has  been  transacted,  or  with- 
in a  specified  part  thereof. 

History:     Enacted  March   21,   1872. 

§  1676.     CONTRACT  IN  RESTRAINT  OF  MARRIAGE, 

VOID.     Every  contract  in  restraint  of  the  marriage   of  any 
person,  other  than  a  minor,  is  void. 

History:     Enacted  March  21,   1872. 


630 


Tit.V,chs.I,Il.]       EXTINCTION— RESCISSION.  §§  1682,  1688 


TITLE    V. 

EXTINCTION  OF   CONTRACTS. 

Chapter   I.     Contracts,   How  Extinguished,  §  1682. 
II.     Rescission,    §§  1688-1691. 
III.     Alteration  and  Cancelation,  §§  1697-1701. 


CHAPTER  I. 
CONTRACTS,   HOW   EXTINGUISHED. 
§  1682.      Contract,    Jiow     extinguished. 

§  1682.  CONTRACT,  HOW  EXTINGUISHED.  A  con- 
tract may  be  extinguished  in  like  manner  with  any  other  ob- 
ligation, and  also  in  the  manner  prescribed  by  this  title. 

Historj':     Enacted  March   21,   1872. 


CHAPTER  II. 

RESCISSION. 

§  1688.     Rescission  extinguishes  contract. 
§  1689.     When  party  may   rescind. 

§  1690.     When    stipulations   against   right   to   rescind   do    not   de- 
feat it. 
§  1691.     Rescission,    how    effected. 

§1688.     RESCISSION    EXTINGUISHES      CONTRACT. 

A  contract  is  extinguished  by  its  rescission. 

History:      Enacted  March   21,   1872. 
631 


§§1689-1691  CIVIL  CODE.  [Div.III.Pt.II. 

§  1689.  WHEN  PARTY  MAY  RESCIND.  A  party  to 
a  contract  may  rescind  the  same  in  the  following  cases  only. 

1.  If  the  consent  of  the  party  rescinding,  or  of  any  party 
jointly  contracting  with  him,  was  given  by  mistake,  or  ob- 
tained through  duress,  menace,  fraud,  or  undue  influence, 
exercised  by  or  with  the  connivance  of  the  party  as  to  whom 
he  rescinds,  or  of  any  other  party  to  the  contract  jointly 
interested   with   such   party; 

2.  If,  through  the  fault  of  the  party  as  to  whom  he  res- 
cinds, the  consideration  for  his  obligation  fails,  in  whole  or 
in  part; 

3.  If  such  consideration  becomes  entirely  void  from  any 
cause; 

4.  If  such  consideration,  before  it  is  rendered  to  him,  fails 
in  a*  material  respect,  from  any  cause;  or, 

5.  By   consent   of   all    the   other   parties. 

History:     Enacted  March   21,  1872. 

§  1690.  WHEN  STIPULATIONS  AGAINST  RIGHT 
TO  RESCIND  DO  NOT  DEFEAT  IT.  A  stipulation  that 
errors  of  description  shall  not  avoid  a  contract,  or  shall  be 
the  subject  of  compensation,  or  both,  does  not  take  away 
the  right  of  rescission  for  fraud,  nor  for  mistake,  where  such 
mistake  is  in  a  matter  essential  to  the  inducement  of  the 
contract,  and  is  not  capable  of  exact  and  entire  compensa- 
tion. 

•     History:     Enacted  March   21,  1872. 

§1691.  RESCISSION,  HOW  EFFECTED.  Rescission, 
when  not  effected  by  consent,  can  be  accomplished  only  by 
the  use,  on  the  part  of  the  party  rescinding,  of  reasonable 
diligence  to  comply  with  the  following  rules: 

1.  He  must  rescind  promptly,  upon  discovering  the  facts 
which  entitle  him  to  rescind,  if  he  is  free  from  duress,  men- 
ace, undue  influence,  or  disability,  and  is  aware  of  his  right 
to  rescind;  and, 

632 


Tit.V,ch.II.]  RESCTSSION^RESTORATION.  §  1691 

2.  He  must  restore  to  the  other  party  everything  of  value 
which  he  has  received  from  him  under  the  contract;  or  must 
ofifer  to  restore  the  same,  upon  condition  that  such  party 
shall  do  likewise,  unless  the  latter  is  unable  or  positively 
refuses  to  do  so. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  40S, 
held   unconstitutional,   see   history,   §  4   ante. 


633 


§§1697-1700  CIVIL  CODE.  [Div.III,Pt.n. 


CHAPTER  III. 

ALTERATION  AND  CANCELATION. 

§  1697.  Alteration  of  verbal  contract.?. 

§  1698.  Written  contracts,   liow  modified. 

§  1699.  Extinction   by  cancelation,   etc. 

§  1700.  Extinction    by    unauthorized    alteration. 

§  1701.  Alteration  of  duplicate,   not  to  prejudice. 

§  1697.     ALTERATION     OF     VERBAL     CONTRACTS. 

A  contract  not  in  writing  may  be  altered  in  any  respect 
by  consent  of  the  parties,  in  writing,  without  a  new  consid- 
eration, and  is  extinguished  thereby  to  the  e.xtent  of  the  new- 
alteration. 

History:  Enacted  March  21,  1872;  amended  March  30.  1874, 
Code   Amdts.    1873-4,   p.    342. 

§  1698.     WRITTEN   CONTRACTS,   HOW     MODIFIED. 

A  contract  in  writing  may  be  altered  by  a  contract  in  writ- 
ing, or  by  an  executed  oral  agreement,  and  not  otherwise. 

History:  Enacted  March  21,  1872;  amended  March  30.  1874, 
Code   Amdts.    1873-4,  p.    243. 

§  1699.     EXTINCTION  BY  CANCELATION,  ETC.     The 

destruction  or  cancelation  of  a  written  contract,  or  of  the 
signature  of  the  parties  liable  thereon,  with  intent  to  ex- 
tinguish the  obligation  thereof,  extinguishes  it  as  to  all  the 
parties   consenting  to  the  act. 

History:     Enacted  March   21,   1872. 

§  1700.  EXTINCTION  BY  UNAUTHORIZED  ALTER- 
ATION. The  intentional  destruction,  cancelation,  or  mate- 
rial  alteration   of  a  written   contract,   by  a  party  entitled   to 

634 


Tit.V,ch.III.]      ALTERATION    OF    DUPLICATE.  §  1701 

any  benefit  under  it,  or  with  his  consent,  extinguishes  all  the 
executory  obligations  of  the  contract  in  his  favor,  against 
parties  who  do  not  consent  to  the  act. 

History:     Enacted  March   21,   1S72. 

§  1701.     ALTERATION      OF      DUPLICATE,    NOT    TO 

PREJUDICE.  Where  a  contract  is  executed  in  duplicate, 
an  alteration  or  destruction  of  one  copy,  while  the  other 
exists,  is  not  within   the  provisions  of  the  last  section. 

History:     Enacted  March   21,   1872. 


635 


§§  1708-1710  CIVIL  CODE.  [Div.III. 


PART  III. 
OBLIGATIONS  IMPOSED  BY  LAW. 

§  1708.  Abstinence    from    injury. 

§  1709.  Fraudulent    deceit. 

§  1710.  Deceit,  what. 

S  1711.  Deceit   upon   the   public,   etc. 

§  1712.  Restoration    of   tiling   wrongfully   acquired. 

§  1713.  When    demand   necessary. 

§  1714.  Responsibility    for    wilful    acts,    negligence,    etc. 

§  1715.  Other    obligations. 


§  1708.  ABSTINENCE  FROM  INJURY.  Every  person 
is  bound,  without  contract,  to  abstain  from  injuring  the  per- 
son or  property  of  another,  or  infringing  upon  anj'  of  his 
rights. 

History:      Enacted  March   21,   1872. 


§  1709.  FRAUDULENT  DECEIT.  One  who  wilfully  de- 
ceives another  with  intent  to  induce  him  to  alter  his  position 
to  his  injury  or  risk,  is  liable  for  any  damage  which  he 
thereby  suffers. 

Hi.slory:      Enacted  March   21,   1872. 

§  1710.  DECEIT,  WHAT.  A  deceit,  within  the  meaning 
of  the  last   section,  is  either: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by 
one  who  does  not  believe  it  to  be  true; 

2.  The  assertion,  as  a  fact,  of  that  which  is  not  true,  by 
one  who  has  no  reasonable  ground  for  believing  it  to  be 
true; 

636 


Pt.lIL]  DECEIT   ON   PUBLIC — DEMAND.        §§  1711-1714 

3.  The  suppression  of  a  fact,  by  one  who  is  bound  to  dis- 
close it,  or  who  gives  information  of  other  facts  which  are 
likely  to  mislead  for  want  of  communication  of  that  fact;  or, 

4.  A  promise,  made  without  any  intention  of  performing  it. 

History:      Enacted  March   21,   1872. 

§  1711.     DECEIT  UPON  THE  PUBLIC,  ETC.     One  who 

practices  a  deceit  with  intent  to  defraud  the  public,  or  a 
particular  class  of  persons,  is  deemed  to  have  intended  to 
defraud  every  individual  in  that  class,  who  is  actually  misled 
by  the  deceit. 

History:      Enacted  March   21,   1S72. 

§  1712.  RESTORATION  OF  THING  WRONGFULLY 
ACQUIRED.  One  who  ol?tains  a  thing  without  the  consent 
of  its  owner,  or  by  a  consent  afterwards  rescinded,  or  by  an 
unlawful  exaction  which  the  owner  could  not  at  the  time  pru- 
dently refuse,  must  restore  it  to  the  person  from  whom  it 
was  thus  obtained,  unless  he  has  acquired  a  title  thereto  su- 
perior to  that  of  such  other  person,  or  unless  the  transac- 
tion was  corrupt  and  unlawful  on  both  sides. 

History:      Enacted  March   21,   1872. 

§  1713.  WHEN  DEMAND  NECESSARY.  The  restora- 
tion re(|uired  by  the  last  section  must  be  made,  without  de- 
mand, except  where  a  thing  is  obtained  by  mutual  mistake, 
in  which  case  the  party  obtaining  the  thing  is  not  bound 
to  return  it  until  he  has  notice  of  the  mistake. 

Hi.*ttory:      Enacted  March   21,   1872. 

§  1714.  RESPONSIBILITY  FOR  WILFUL  ACTS, 
NEGLIGENCE,  ETC.  Every  one  is  responsible,  not  only 
for  the  result  of  his  wilful  acts,  but  also  for  an  injury  occa- 
sioned to  another  by  his   want  of  ordinary  care  or  skill   in 

637 


§  1715  CIVIL    CODE.  [Div.III. 

the  management  of  his  property  or  person,  except  so  far  as 
the  latter  has,  wilfully  or  by  want  of  ordinary  care,  brought 
the  injury  upon  himself.  The  extent  of  liability  in  such  cases 
is  defined  by  the  title  on  compensatory  relief. 

History:     Enacted  March   21,   1872. 

§  1715.  OTHER  OBLIGATIONS.  Other  obligations  are 
prescribed  by  divisions  one  and  two  of  this  code. 

History;  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  409, 
held  unconstitutional,  see  history,   §  4  ante. 


638 


Tit.l.]  OBLIGATIONS— SALE.  §  1721 


PART   IV. 

OBLIGATIONS    ARISING    FROM    PARTICULAR 
TRANSACTION'S 

Title  I.  Sale,  §§  1721-1798. 

II.  Exchange,  §§  1804-1807. 

III.  Deposit,   §§  1813-1878. 

IV.  Loan,   §§  1884-1920. 
V.  Hiring,    §§  1925-1959. 

VI.  Service,  §§  1965-2079. 

VII.  Carriage,    §§2085-2209. 

VIII.  Trust,    §§2215-2289. 

IX.  Agency,    §§2295-2389. 

X.  Partnership,  §§2395-2520. 

XI.  Insurance,    §§2527-2766. 

XII.  Indemnity,  §§  2772-2781. 

XIII.  Guaranty,  §§2787-2866. 

XIV.  Lien,  §§2872-3080. 

XV.     Negotiable    Instruments,    §§3086-3262. 
XVI.     General   Provisions,  §3268. 


TITLE   I. 

SALE. 

Chapter   I.     General   Provisions,   §§  1721-1741. 

II.     Rights    and    Obligations    of    the    Seller,    §§1748- 
1778. 

III.  Rights    and    Obligations    of    the    Buyer,    §§1784- 

1786. 

IV.  Sale  by  Auction,  §§  1792-1798. 

639 


§§1721,1722  CIVIL    CODE.  [T)iv.III,Pt.IV. 


CHAPTER  I. 

GENERAL  PROVISIONS 

Article  I.     Sale,   §§  1721,  1722. 

II.     Agreement  for  Sale,  §§  1726-1734. 
III.     Form  of  the  Contract,   §§1739-1741. 


ARTICLE  I. 

SALE. 
§  1721.     Sale,  what. 
§  1722.      Subject    of    sale. 

§  1721.  SALE,  WHAT.  Sale  is  a  contract  by  which,  for 
a  pecuniary  consideration,  called  a  price,  one  transfers  to 
another  an  interest  in  propert}'. 

History:      Enacted  March   21,   1872. 

§  1722.  SUBJECT  OF  SALE.  The  subject  of  sale  must 
be  propert}-,  the  title  to  which  can  be  immediatel)'  trans- 
ferred from  the  seller  to  the  buyer. 

History:      Enacted  March   21,   1S72. 


640 


Tit.I.ch.I.art.lI.]     agreement  FOR  SALE.  §§  1726-1729 


ARTICLE  II. 
AGREEMENT    FOR    SALE. 

1726.  Agreement   loi-   sale. 

1727.  Agreement   to  sell. 
172S.      Agreement    to    buy. 

1729.  Agreement  to  sell  and  buy. 

1730.  What  maj'  be   the   subject  of  the  contract. 

1731.  Agreement   to   sell   real  property. 

1732.  Form  of   grant   required  by   such   contract    [repealed]. 

1733.  Usual    common-law    covenants    required    by    such    con- 

tracts, when. 

1734.  Form   of   such   covenants. 


§  1726.     AGREEMENT    FOR    SALE.     An   agreement   for 

sale  is  either: 

1.  An  agreement  to   sell; 

2.  An  agreement  to  buj^;   or, 

3.  A  mutual  agreement  to  sell  and  buy. 

History:     Enacted  March   21,   1872. 

§  1727.  AGREEMENT  TO  SELL.  An  agreement  to  sell 
is  a  contract  by  which  one  engages,  for  a  price,  to  trans- 
fer to  another  the  title  to  a  certain  thing. 

Hi.story:      Enacted  March   21,   1S72. 

§  1728.  AGREEMENT  TO  BUY.  An  agreement  to  buy 
is  a  contract  by  which  one  engages  to  accept  from  another, 
and  pay  a  price  for  the  title  to  a  certain  thing. 

History:      Enacted  March   21,   1872. 

»     §  1729.     AGREEMENT  TO  SELL  AND  BUY.     An  agree- 
ment to  sell  and  buy  is  a  contract  by  which  one  engages  to 

21  641 


§S  1730-1734  nvTT.  0(»r)K.  |  Div.I  I  I.Pt.IV. 

transfer  the  title  to  a  certain  thing  to  another,  who  engages 
to  accept  the  same  from  him  and  to  pay  a  price  therefor. 

Ili.story:      Enacted   Marcli   I'l,    1S72. 


§  1730.  WHAT  MAY  BE  THE  SUBJECT  OF  THE 
CONTRACT.  Any  property  which,  if  in  existence,  might 
be  the  subject  of  sale,  may  be  the  subject  of  an  agreement 
for  sale,  whether  in  existence  or  not. 

History:      Enacted  March    21.   1S72. 

§  1731.     AGREEMENT  TO     SELL  REAL    PROPERTY. 

An  agreement  to  sell  real  property  binds  the  seller  to  exe- 
cute a  conveyance  in  form  sufficient  to  pass  the  title  to  the 
property. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.    lS7.'5-4.  p.   243. 

§  1732.  FORM  OF  GRANT  REQUIRED  BY  SUCH 
CONTRACT   1  repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.    1S73-4,  p.   24  3. 

§  1733.  USUAL  COMMON-LAW  COVENANTS  RE- 
QUIRED BY  SUCH  CONTRACTS,  WHEN.  An  agree- 
ment on  the  part  of  a  seller  of  real  property  to  give  the 
usual  covenants,  binds  him  to  insert  in  the  grant  covenants 
of  "seizin,"  "quiet  enjoyment,"  "further  assurance."  "general 
warranty,"  and  "against  encumbrances." 

History:      Enacted  March   21,   1872. 

§  1734.  FORM  OF  SUCH  COVENANTS.  The  cove- 
nants mentioned  in  the  last  section  must  be  in  substance  as 
follows:  "The  party  of  the  first  part  covenants  with  the 
party   of  the   second  part,   that   the   former   is   now   seized   in 

642 


Tit.I.ch.I.art.II.]       FORM  OF  COVENANTS.  §  1734 

fee  simple  of  the  property  granted;  that  the  latter  shall  en- 
joy the  same  without  any  lawful  disturbance;  that  the  same 
is  free  from  all  encumbrances;  that  the  party  of  the  first 
part,  and  all  persons  acquiring  anj'  interest  in  the  same 
through  or  for  him,  will,  on  demand,  execute  and  deliver 
to  the  party  of  the  second  part,  at  the  expense  of  the  latter, 
any  further  assurance  of  the  same  that  may  be  reasonably 
required;  and  that  the  party  of  the  first  part  will  warrant 
to  the  party  of  the  second  part  all  the  said  property  against 
every  person  lawfully  claiming  the  same." 

History:      Enacted  March   21,   1S72. 


643 


§§  1739-1741  CIVIL  CODE.  [Div.III,Pt.IV. 


ARTICLE  III. 

FORM   OF   THE    CONTRACT. 

§  17.19.     Contract    for   sale   of   personal   property. 

§  1740.     Contract  to  manufacture. 

^  1741.     Contract  for   sale   of   real  property. 


§  1739.  CONTRACT  TO  SELL  PERSONAL  PROP- 
ERTY. No  sale  of  personal  property,  or  agreement  to  buy 
or  sell  it  for  a  price  of  two  hundred  dollars  or  more,  is  valid, 
unless: 

1.  The  agreement  or  some  note  or  memorandum  thereof 
be  in  writing,  and  subscribed  by  the  party  to  be  charged,  or 
by  his  agent;  or, 

2.  The  buyer  accepts  and  receives  part  of  the  thing  sold, 
or  when  it  consists  of  a  thing  in  action,  part  of  the  evi- 
dences thereof,  or  some  of  them;  or, 

3.  The  buyer,  at  the  time  of  sale,  pays  a  part  of  the  price. 

History:  Enacted  March  21,  1872;  amendud  March  SO,  1874, 
Code   Amdts.    1873-4,   p.    243. 


§  1740.  CONTRACT  TO  MANUFACTURE.  An  agree- 
ment to  manufacture  a  thing,  from  materials  furnished  by 
the  manufacturer,  or  by  another  person,  is  not  within  the 
provisions   of   the   last   section. 

Hl.story:      Enacted  March   21,   1872. 


§  1741.  CONTRACT  FOR  SALE  OF  REAL  PROPER- 
TY. No  agreement  for  the  sale  of  real  property,  or  of  an 
interest  therein,  is  valid,  unless  the  same,  or  some  note  or 

644 


Tit.I,ch.I,art.III.]      CONTRACT   FOR  SALE.  §  1741 


memorandum  thereof,  be  in  writing,  and  subscribed  by  the 
party  to  be  charged,^  or  his  agent,  thereunto  authorized,  in 
writing;  but  this  does  not  abridge  the  power  of  any  court 
to  compel  the  specific  performance  of  any  agreement  for  the 
sale  of  real  property  in  case  of  part  performance  thereof. 

History:      Enacted    March    21,    1872;    amended   March    30,    1874, 
Code   Amdts.    1873-4,  pp.    243,    244. 


645 


§§1748,1749  CIVIL  CODE.  [Div.III.Pt.U'. 


CHAPTER  II. 

RIGHTS    AND    OBLIGATIONS    OF    THE    SELLER 

Article   i.     Rights  and   Duties  Before   Delivery,  §§1748,   1749. 
II.     Delivery.  §§  1753-1758. 
III.     Warranty,  §§  1763-1778. 


ARTICLE  I. 

RIGHTS    AXD   DUTIES    BEFORE    DELIVERY. 

§  174S.     When  seller  must  act  as  depositary. 
§  1749.     When  seller  may  resell. 

§  1748.  WHEN  SELLER  MUST  ACT  AS  DEPOSI- 
TARY. After  personal  property  has  been  sold,  and  until  the 
delivery  is  completed,  the  seller  has  the  rights  and  obliga- 
tions of  a  depositary'  for  hire,  except  that  he  must  keep  the 
property,  without  charge,  until  the  buyer  has  had  a  reason- 
able  opportunity  to  remove  it. 

History:      Enacted  March   21,   1872. 


§1749.  WHEN  SELLER  MAY  RESELL.  If  a  buyer 
of  personal  property-  does  not  pay  for  it  according  to  con- 
tract, and  it  remains  in  the  possession  of  the  seller  after  pay- 
ment is  due,  the  seller  may  rescind  the  sale,  or  may  enforce 
his  lien  for  the  price,  in  the  manner  prescribed  by  the  title 
on   liens. 

IllNtory:      Enacted  March   21.   1,S72. 


646 


Tit.T,ch.TI,art.II.]  DELIVERY.  §§1753-1756 


ARTICLE  II. 

DELIVERY. 

§  1753.  Delivery  on   demand. 

§  17.54.  Delivery,   where   made. 

§  1755.  Expense   of   transportation. 

§  1756.  Notice  of  election  as  to  delivery. 

§  1757.  Buyer's  directions  as   to  manner   of  sending   thing   .sold. 

§1758.  Delivery   to   be  within   reasonable   hours. 

§  1753.  DELIVERY  ON  DEMAND.  One  who  sells  per- 
sonal property,  whether  it  was  in  his  possession  at  the  time 
of  sale  or  not,  must  put  it  into  a  condition  fit  for  delivery, 
and  deliver  it  to  the  liuyer  within  a  reasonable  time  after  de- 
mand, tmless  he  has  a  lien   thereon. 

Hi.story:      Enacted  March   21,    1872. 

§  1754.  DELIVERY,  WHERE  MADE.  Personal  prop- 
erty sold  is  deliverable  at  the  place  where  it  is  at  the  time 
of  the  sale  or  agreement  to  sell,  or  if  it  is  not  then  in  exist- 
ence, it  is  deliverable  at  the  place  where  it  is  prodticed. 

History:      Enacted   March    21.    1872. 


§  1755.     EXPENSE  OF  TRANSPORTATION.     One  who 

sells  personal  property  must  bring  it  to  his  own  door,  or 
other  convenient  place,  for  its  acceptance  by  the  buyer,  but 
further  transportation  is  at  the  risk  and  expense  of  the 
buyer. 

History:      Enacted   March    21,    1872. 

§  1756.     NOTICE  OF  ELECTION  AS  TO  DELIVERY. 

When  either  party  to  a  contract  of  sale  lias  an  option  as  to 
the  time,  place,  or  manner  of  delivery,  lie  must  give  the  other 

647 


§§1757,1758  CIVIL  CODE.  [Div.III.Pt.IV. 

party  reasonable  notice  of  his  choice;  and  if  he  does  not  give 
such  notice  within  a  reasonable  time,  his  right  of  option  is 
waived. 

HLstory:     Enacted  March   21,   1872. 

§1757.  BUYER'S  DIRECTIONS  AS  TO  MANNER  OF 
SENDING  THING  SOLD.  If  a  seller  agrees  to  send  the 
thing  sold  to  the  buyer,  he  must  follow  the  directions  of  the 
latter  as  to  the  manner  of  sending,  or  it  will  be  at  his  own 
risk  during  its  transportation.  If  he  follows  such  directions, 
or  if,  in  the  absence  of  special  directions,  he  uses  ordinary 
care  in  forwarding  the  thing,  it  is  at  the  risk  of  the  buyer. 

History:     Enacted  March   21,   1872. 

§  1758.     DELIVERY   TO    BE  WITHIN   REASONABLE 

HOURS.  The  delivery  of  a  thing  sold  can  be  oflfered  or  de- 
manded only  within  reasonable  hours  of  the  day. 

History:      Enacted  March   21,   1872. 


648 


Tit.I,ch.II,art.III.]     WARRANTY— IMPLIED.  §§1763-1765 


ARTICLE  III. 

WARRANTY. 

§  1763.  Warranty,   what. 

§  1764.  No   impliod  warranty   in   mere  contract   of   sale. 

§  1765.  Warranty    of  title   to   personal   property. 

§  1766.  Warranty   on   sale   by   sample. 

§  1767.  When  seller  knows  that  buyer  relies  on  his  statements, 

etc. 

§1768.  Merchandise    not    in    existence. 

§  1769.  Manufacturer's  warranty  against  latent  defects. 

§  1770.  Thing  bought   for  particular  purpose. 

,§1771.  When   thing  cannot   be   examined   by   buyer. 

§  1772.  Trade-marks. 

§  1773.  Other   marks. 

§  1774.  Warranty  on  sale  of  written  instrument. 

§  1773.  Warranty  of  provisions  for  domestic  use. 

§  1776.  Warranty    on   sale    of    good-will. 

■§  1777.  Warranty   upon   judicial   sale. 

§1778.  Effect  of  general  warranty. 

§  1763.  WARRANTY,  WHAT.  A  warranty  is  an  en- 
gagement by  which  a  seller  assures  to  a  buyer  the  existence 
of  some  fact  affecting  the  transaction,  whether  past,  present, 
or  future. 

History:     Enacted  March   21,  1872. 

§  1764.  NO  IMPLIED  WARRANTY  IN  MERE  CON- 
TRACT OF  SALE.  Except  as  prescribed  by  this  article,  a 
mere  contract  of  sale  or  agreement  to  sell  does  not  imply  a 
warranty. 

History:      Enacted  March   21,   1872. 

§  1765.  WARRANTY  OF  TITLE  TO  PERSONAL 
PROPERTY.     One   who  sells  or    agrees    to    sell     personal 

649 


§§1706-1769  CIVIL  CODE.  [Div.III.Pt.lV. 

propertj',  as  his  own,  thereby  warrants  that  he  has  a  good 
and  unencumbered   title  thereto. 

History:     Enacted  March   21,  1872. 

§  1766.     WARRANTY    ON    SALE    BY    SAMPLE.     One 

who  sells  or  agrees  to  sell  goods  by  sample,  thereby  war- 
rants the  hulk  to  be  equal  to  the  sample. 

Hi.-slory:     Enacted  March   21,   1872. 

§  1767.  WHEN  SELLER  KNOWS  THAT  BUYER  RE- 
LIES ON  HIS  STATEMENTS,  ETC.  One  who  sells  or 
agrees  to  sell  personal  property,  knowing  that  the  buyer  re- 
lies upon  his  advice  or  judgment,  thereby  warrants  to  the 
buyer  that  neither  the  seller,  nor  any  agent  employed  by 
him  in  the  transaction,  knows  the  existence  of  any  fact  con- 
cerning the  thing  sold  which  would,  to  his  knowledge,  de- 
stroy the  buyer's  inducement  to  buy. 

History:     Enacted  March   21,   1872. 

§  1768.     MERCHANDISE  NOT    IN    EXISTENCE.     One 

who  agrees  to  sell  merchandise  not  then  in  existence,  there- 
by warrants  that  it  shall  be  sound  and  merchantable  at  the 
place  of  production  contemplated  by  the  parties,  and  as  near- 
ly so,  at  the  place  of  delivery,  as  can  be  secured  by  reason- 
able care. 

Histor?-:     Enacted  March   21,   1872. 

§1769.  MANUFACTURER'S  WARRANTY  AGAINST 
LATENT  DEFECTS.  One  who  sells  or  agrees  to  sell  an 
article  of  his  own  manufacture  thereby  warrants  it  to  be 
free  from  any  latent  defect,  not  disclosed  to  the  buyer,  aris- 
ing from  the  process  of  manufacture,  and  also  that  neither 
he  nor  his  agent  in  such  manufacture  has  knowingly  used 
improper  materials  therein. 

Hi.story:     Enacted  March  21,   1872. 

6S0 


Tit.l.cli.n.art.TTT.l     KXAMtnattON— MARKS.  §§  1770-1774 

§  1770.  THING  BOUGHT  FOR  PARTICULAR  PUR- 
POSE. One  who  manufactures  an  article  under  an  order 
for  a  particular  purpose,  warrants  by  the  sale  that  it  is  rea- 
sonably fit  for  that  purpose. 

History:      Enacted  March   21,   1872. 

§  1771.  WHEN  THING  CANNOT  BE  EXAMINED  BY 
BUYER.  One  who  sells  or  agrees  to  sell  merchandise  in- 
accessil)le  to  the  examination  of  the  buyer,  thereby  warrants 
that  it  is  sound  and  merchantable. 

History:      Enacted  March   21,   1872. 

§  1772.  TRADE-MARKS.  One  who  sells  or  agrees  to 
sell  any  article  to  which  there  is  affi?ced  or  attached  a  trade- 
mark, thereby  warrants  that  mark  to  be  genuine  and  law- 
fully used. 

History:      Enacted  March   21,   1872. 

§  1773.  OTHER  MARKS.  One  who  sells  or  agrees  to 
sell  any  article  to  which  there  is  affixed  or  attached  a  state- 
ment or  mark  to  express  the  quantity  or  quality  thereof,  or 
the  place  where  it  was,  in  whole  or  in  part,  produced,  manu- 
factured, or  prepared,  thereby  warrants  the  truth  thereof. 

History:      Enacted  March   21,   1872. 

§1774.  WARRANTY  ON  SALE  OF  WRITTEN  IN- 
STRUMENT. One  who  sells  or  agrees  to  sell  an  instru- 
ment purporting  to  bind  any  one  to  the  performance  of  an 
act,  thereby  warrants  that  he  has  no  knowledge  of  any  facts 
which  tend  to  prove  it  worthless,  such  as  the  insolvency  of 
any  of  the  parties  thereto,  where  that  is  material,  the  ex- 
tinction  of  its  obligations,   or  its  invalidity  for  any  cause. 

History:  Enacted  March  21,  1872;  amended  March  ?.0,  1S74, 
Code   Amdts.    1873-4,   p.    244. 

651 


§§1775-1778  CIVIL  CODE.  [Div.III,Pt.IV. 

Originally  this  section  contained  a  further  provision,  whicli 
was  stricken  out  in  1874,  that  seller  warrants  instrument  to 
be  what  it  purports  to  be  and  fo  be  binding  according  to  its 
purport  upon  all  parties  thereto. — Kendall  vs.  Parker,  103  Cal. 
319,  324,   42  Am.   St.  Rep.   117,   37  Pac.  Rep.   401. 

§  1775.  WARRANTY  OF  PROVISIONS  FOR  DOMES- 
TIC USE.  One  who  makes  a  business  of  selling  provisions 
for  domestic  use  warrants  by  a  sale  thereof,  to  one  who 
buys  for  actual  consumption,  that  they  are  sound  and  whole- 
some. 

History:     Enacted  March   21,   1872. 

§1776.     WARRANTY     ON     SALE     OF     GOOD-WILL. 

One  who  sells  the  good-will  of  a  business  thereby  warrants 
that  he  will  not  endeavyr  to  draw  off  any  of  the  customers. 

History:      Enacted  March   21.   1872. 

§  1777.  WARRANTY  UPON  JUDICIAL  SALE.  Upon 
a  judicial  sale,  the  only  warranty  implied  is  that  the  seller 
does  not  know  that  the  sale  will  not  pass  a  good  title  to  the 
property. 

History:     Enacted  March   21,   1872. 

§  1778.  EFFECT  OF  GENERAL  WARRANTY.  A  gen- 
eral warranty  does  not  extend  to  defects  inconsistent  there- 
with of  which  the  buyer  was  then  aware,  or  which  were  then 
easily  discernible  by  him  without  the  exercise  of  peculiar 
skill;  but  it  extends  to  all  other  defects. 

History:     Enacted  March  21,   1872. 


652 


Tit.I,ch.III.]  PRICE  AND   INSPECTION.  §§1784-1786 


CHAPTER  III. 

RIGHTS    AND    OBLIGATIONS    OF    THE    BUYER. 

§  17S4.  Price,  when  to  be  paid. 
§  1785.  Right  to  inspect  goods. 
§  1786.      Rights    in    case    of    breacli    of   warranty.  , 

§  1784.  PRICE,  WHEN  TO  BE  PAID.  A  buyer  must 
pay  the  price  of  the  thing  sold  on  its  delivery,  and  must  take 
it  away  within  a  reasonable  time  after  the  seller  offers  to 
deliver  it. 

History:      Enacted  March   21,   1872. 

§  1785.  RIGHT  TO  INSPECT  GOODS.  On  an  agree- 
ment for  sale,  with  warranty,  the  buyer  has  a  right  to  inspect 
the  thing  sold,  at  a  reasonable  time,  before  accepting  it;  and 
may  rescind  the  contract  if  the  seller  refuses  to  permit  him 
to  do  so. 

History:      Enacted  March   21,   1872. 

§  1786.  RIGHTS  IN  CASE  OF  BREACH  OF  WAR- 
RANTY. The  breach  of  a  warranty  entitles  the  buyer  to 
rescind  an  agreement  for  sale,  but  not  an  executed  sale,  un- 
less the  warranty  was  intended  by  the  parties  to  operate  as 
a  condition. 

HLstory:      Enacted  March   21,   1872. 


653 


§§1702-1795  niViL  conE.  fDiv.I  Il.Pt.lV 


CHAPTER  IV. 

SALE    BY    AUCTION. 

§  1792.  Sale    by   auction,   what. 

§  179.3.  Sale,  when  complete. 

§  1794.  Withdrawal  of  bid. 

§  179.5.  Sale   under    written    conditions. 

§  1796.  Rights  of  buyer,  upon  sale  without  reserve. 

§  1797.  By   bidding. 

§  179S.  Auctioneer's   memorandum   of  sale. 

§  1792.  SALE  BY  AUCTION,  WHAT.  A  sale  by  auc- 
tion is  a  sale  by  public  outcry  to  the  highest  bidder  on  the 
spot. 

History:     Enacted  March   21.  1872. 

§  1793.  SALE,  WHEN  COMPLETE.  A  sale  by  auction 
is  complete  when  the  auctioneer  publicly  announces,  by  the 
fall  of  his  hammer,  or  in  any  other  customary  manner,  that 
the  thing  is  sold. 

History:     Enacted  March   21,  1872. 

§  1794.  WITHDRAWAL  OF  BID.  Until  the  announce- 
ment mentioned  in  the  last  section  has  been  made,  any  bid- 
der may  withdraw  his  bid.  if  he  does  so  in  a  manner  reason- 
ably sufficient  to  bring  it  to  the  notice  of  the  auctioneer. 

History:      Enacted   March    21.   1872. 

§  1795.     SALE      UNDER      WRITTEN      CONDITIONS. 

When  a  sale  by  auction  is  made  upon  written  or  printed  con- 
ditions, such  conditions  cannot  be  modified  by  any  oral  dec- 
laration of  the  auctioneer,  except  so  far  as  they  are  for  his 
own  benefit. 

HLstory:     Enacted  March   21,  1872. 

654 


Tit.I.ch.IV.]  BUYER   WITHOUT    SALE.  §§1796-1798 

§  1796.  RIGHTS  OF  BUYER  UPON  SALE  WITHOUT 
RESERVE.  If,  at  a  sale  by  auction,  the  auctioneer,  having 
authorit)'  to  do  so.  publicly  announces  that  the  sale  will  be 
without  reserve,  or  makes  any  announcement  equivalent 
thereto,  the  highest  bidder  in  good  faith  has  an  absolute 
right  to  the  completion  of  tlie  sale  to  him;  and,  upon  such  a 
sale,  bids  by  the   seller,  or  any  agent  for  him.  are  void. 

Hi.story:      Enacted  March   21.  1872. 

§  1797.  BY  BIDDING.  The  employment  by  a  seller  of 
any  person  to  bid  at  a  sale  by  auction,  without  the  knowl- 
edge of  the  buyer,  without  an  intention  on  the  part  of  such 
bidder  to  buy,  and  on  the  part  of  the  seller  to  enforce  his 
bid,  is  a  fraud  upon  the  buyer,  which  entitles  him  to  rescind 
his  purchase. 

History :     Enacted  Marcli   21,  1872. 

§  1798.     AUCTIONEER'S   MEMORANDUM   OF    SALE. 

When  property  is  sold  Ijy  auction,  an  entry  made  by  the 
auctioneer,  in  his  sale  book,  at  the  time  of  the  sale,  specify- 
ing the  name  of  the  person  for  whom  he  sells,  the  thing 
sold,  the  price,  the  terms  of  sale,  and  the  name  of  the  buyer, 
binds  both  the  parties  in  the  same  manner  as  if  made  by 
themselves. 

HiMtory:  Enacted  March  21,  ISl'.i;  amended  March  30,  1874, 
Code    Amdts.    1873-4,   p.    244. 


655 


§§1804-1807  CIVIL  CODE.  [Div.III.Pt.IV. 


TITLE  II. 

EXCHANGE. 

§  1804.      Exchange,   what. 

§  1805.     Form    of   contract. 

§  1806.     Parties    have     rights    and     obligations    of     sellers     and 

buyers. 
§  ISO".      Warranty   of  money. 

§  1804.  EXCHANGE,  WHAT.  Exchange  is  a  contract 
by  which  the  parties  mutually  give,  or  agree  to  give,  one 
thing  for  another,  neither  thing,  or  both  things,  being  money 

only. 

History:     Enacted  March   21,   1872. 

§  1805.  FORM  OF  CONTRACT.  The  provisions  of  sec- 
tion seventeen  hundred  and  thirty-nine  apply  to  all  e.x- 
changes  in  which  the  value  of  the  thing  to  be  given  bj-  either 
party  is  two  hundred  dollars  or  more. 

History;     Enacted  March  21,   1S72. 

§1806.  PARTIES  HAVE  RIGHTS  AND  OBLIGA- 
TIONS OF  SELLERS  AND  BUYERS.  The  provisions  of 
the  title  on  sale  apply  to  exchanges.  Each  party  has  the 
rights  and  obligations  of  a  seller  as  to  the  thing  which  he 
gives,  and  of  a  buyer  as  to  that  which  he  takes. 

History:     Enacted  March   21,   1872. 

§  1807.  WARRANTY  OF  MONEY.  On  an  exchange  of 
money,  each  part}^  thereby  warrants  the  genuineness  of  the 
money  given  by  him. 

History:     Enacted  March  21,   1872. 


656 


Tit.III,ch.l,art.I.]      KINDS  OF  DEPOSITS.  §§1813,1814 


TITLE  III. 

DEPOSIT. 

Chapter     I.     Deposit  in  General,  §§  1813-1828. 
II.     Deposit  for  Keeping,  §§1833-1872. 
III.     Deposit   for   Exchange,   §1878. 


CHAPTER  I. 

DEPOSIT  IN   GENERAL 

Article  I.     Nature  and   Creation     of     Deposit,     §§  1813-1818. 
II.     Obligations    of   the    Depositary,    §§  1822-1828. 


ARTICLE  I. 

NATURE    AND    CREATION    OF    DEPOSIT. 

§  1813.  Deposit,    kinds    of. 

§  1814.  Voluntary    deposit,    how    made. 

§  1815.  Involuntary    deposit,    how    made. 

S  1816.  Same.      [Duty   of   involuntary  depositary.] 

§  1817.  Deposit    for    safe    keeping,    what. 

§  1818.  Deposit    for    exchange,    what. 

§1813.     DEPOSIT,  KINDS   OF.     A   deposit   may  be  vol- 
untary or  involuntary;  and  for  safe-keeping  or  for  exchange. 

History:      Enacted  March  21,   1872. 

§  1814.     VOLUNTARY    DEPOSIT,      HOW      MADE.     A 

voluntary   deposit   is    made   by    one    giving    to   another,    with 

657 


§§1815-1818  CIVIL  CODE.  [Div.III,Pt.lV. 

his  consent,  the  possession  of  personal  property  to  keep  for 
the  benefit  of  the  former,  or  of  a  third  party.  The  person 
giving  is  called  the  depositor,  and  the  person   receiving  the 

depositary. 

Hi.<*liir.v:      Enacted   March    21,   ISTli. 

§  1815.     INVOLUNTARY      DEPOSIT,      HOW      MADE. 

An   involuntary  deposit  is  made: 

1.  By  the  accidental  leaving  or  placing  of  personal  prop- 
erty in  the  possession  of  any  person,  without  negligence  on 
the  part  of  its  owner;   or. 

2.  In  cases  of  fire,  shipwreck,  inundation,  insurrection,  riot, 
or  like  extraordinary  emergencies,  by  the  owner  of  personal 
property  committing  it,  out  of  necessity,  to  the  care  of  anj' 
person. 

Hi.story:      Enacted  March  21,   1S72. 

§  1816.  SAME.  [DUTY  OF  INVOLUNTARY  DE- 
POSITARY.] The  person  with  whom  a  thing  is  deposited 
in  the  manner  described  in  the  last  section  is  bound  to  take 
charge  of  it,  if  able  to  do  so. 

HLstory:      Enacted  March  21,   1ST2. 

§1817.  DEPOSIT  FOR  SAFE  KEEPING,  WHAT.  A 
deposit  for  keeping  is  one  in  which  the  depositary  is  bound 
to  return  the  identical  thing  deposited. 

History:      Enacted  March  21,   1ST2. 

§  1818.  DEPOSIT  FOR  EXCHANGE,  WHAT.  A  de- 
posit for  exchange  is  one  in  which  the  depositary  is  only 
bound  to  return  a  thing  corresponding  in  kind  to  that  which 
is  deposited. 

Hislory:      Enacted   March   21,    1S72. 


658 


Til.nT,c]l.T,art.lI.l     nEI.TVERY  ON  DEMAND.  §§1822-1825 


§  1822 
§  1823 
§  1824 
§  1825 
§  1826 
§  1827 
§  1828 


ARTICLE  II. 

OBLIGATIONS     OF     THE     DEPOSITARY. 

Depositary   must   deliver   on   demand. 

No   obligation   to   deliver   without   demand. 

Place  of  delivery. 

Notice   to   owner   of   adverse   claim. 

Notice    to    owner    of    thing   wrongfully    detained. 

Delivery  of  thing  owned   jointly,   etc. 

Joint   deposits   by   two   or   more  persons. 


§1822.  DEPOSITARY  MUST  DELIVER  ON  DE- 
MAND. A  depositary  must  deliver  the  thing  to  the  person 
for  whose  benefit  it  was  deposited,  on  demand,  whether  the 
deposit  was  made  for  a  specified  time  or  not,  unless  he  has 
a  lien  upon  the  thing  deposited,  or  has  been  forbidden  or 
prevented  from  doing  so  by  the  real  owner  thereof,  or  by 
the  act  of  the  law,  and  has  given  the  notice  required  by  sec- 
tion eighteen  hundred  and  twenty-five. 

History:     Enacted  March   21,   1872. 

§  1823.  NO  OBLIGATION  TO  DELIVER  WITHOUT 
DEMAND.  A  depositary  is  not  bound  to  deliver  a  thing- 
deposited  without  demand,  even  where  the  deposit  is  made 
for  a  specified  time. 

Hl.story:      Enacted  March   21,    1872. 

§  1824.  PLACE  OF  DELIVERY.  A  depositary  must  de- 
liver the  thing  deposited  at  his  residence  or  place  of  business, 
as  may  be  most  convenient  for  him. 

History:      Enacted  March   21,    1872. 


§  1825.     NOTICE  TO  OWNER  OF  ADVERSE  CLAIM. 

A    depositary    must    give    prompt    notice    to    the    person    for 

659 


§§1826-1828  CIVIL  CODE.  [Div.III.Pt.IV. 

whose  benefit  the  deposit  was  made,  of  any  proceedings  tak- 
en adversely  to  his  interest  in  the  thing  deposited,  which 
may  tend  to  excuse  the  depositary  from  delivering  the  thing 

to  him. 

History:     Enacted  March   21,   1872. 

§  1826.  NOTICE  TO  OWNER  OF  THING  WRONG- 
FULLY DETAINED.  A  depositary,  who  believes  that  a 
thing  deposited  with  him  is  wrongfully  detained  from  its 
true  owner,  may  give  him  notice  of  the  deposit;  and  if  with- 
in a  reasonable  time  afterwards  he  does  not  claim  it,  and 
sufficiently  establish  his  right  thereto,  and  indemnify  the  de- 
positary against  the  claim  of  the  depositor,  the  depositary 
is  exonerated  from  liability  to  the  person  to  whom  he  gave 
the  notice,  upon  returning  the  thing  to  the  depositor,  or  as- 
suming, in  good  faith,  a  new  obligation  changing  his  posi- 
tion in  respect  to  the  thing,  to  his  prejudice. 

History:     Enacted  March   21,   1872. 

§  1827.  DELIVERY  OF  THING  OWNED  JOINTLY, 
ETC.  If  a  thing  deposited  is  owned  jointly  or  in  common 
by  persons  who  cannot  agree  upon  the  manner  of  its  deliv- 
ery, the  depositary  may  deliver  to  each  his  proper  share 
thereof,  if  it  can  be  done  without  injury  to  the  thing. 

Hi.story:     Enacted  March   21,   1872. 

§  1828.  JOINT  DEPOSITS  BY  TWO  OR  MORE  PER- 
SONS. When  a  deposit  is  made  in  the  name  of  two  or  more 
persons,  deliverable  or  payable  to  either  or  to  their  survivor 
or  survivors,  such  deposit  or  any  part  thereof,  or  increase 
thereof,  may  be  delivered  or  paid  to  either  of  said  persons 
or  to  the  survivor  or  survivors  in  due  course  of  business. 

Hi-story:  Enacted  March  4,  1907,  Stats,  and  Amdts.  1907,  p. 
92,    Kerr's   Stats,   and  Amdts.    1906-7,   p.    426. 


660 


Tit.III.ch.II.art.I.]        INDEMNIFYING   DEPOSITARY.  §1833 


CHAPTER  II. 

DEPOSIT  FOR  KEEPING 

Article  I.     General    Provisions,   §§  1833-1840. 
II.     Gratuitous   Deposit,   §§1844-1847. 

III.  Storage,    §§1851-1857. 

1 1  la.     Warehousemen,  §§-1858-1858f. 

IV.  Innkeepers,   §§  1859-1863. 
V.     Finding,    §§  1864-1872. 


ARTICLE  I. 

GENERAL  PROVISIONS. 

?  1833.  Depositor  must  indemnify  depositary. 

§  1834.  Obligation    of   depbsitary    of   animals. 

§  1835.  Obligations  as  to  use  of  thing  deposited. 

§  1836.  Liability    for    damage    arising   from    wrongful    use. 

§  1837.  Sale  of  thing  in   danger  of  perishing. 

§  1838.  Injury  to,   or   loss  of  thing  deposited. 

§  1839.  Service   rendered    by   depositary. 

§  1840.  Extent  of  his  liability  for  negligence. 

§  1833.  DEPOSITOR  MUST  INDEMNIFY  DEPOSI- 
TARY.    A   depositor  must  indemnify  the  depositary: 

1.  For  all  damage  caused  to  him  by  the  defects  or  vices 
of  the  thing  deposited;  and, 

2.  For  all  expenses  necessarily  incurred  by  him  about  the 
thing,  other  than  such  as  are  involved  in  the  nature  of  the 
undertaking. 

History:     Enacted  March   21,   1872. 

661 


§§1834-1838  CTViL  roDK.  f Div.TTl.Pt.lV. 

§  1834.  OBLIGATION  OF  DEPOSITARY  OF  ANI- 
MALS. A  depositary  of  living  animals  must  provide  them 
with  suitable  food  and  shelter,  and  treat  them  kindly. 

History:     Enacted  March   21,  1872. 


§  1835.  OBLIGATIONS  AS  TO  USE  OF  THING  DE- 
POSITED. A  depositary  may  not  use  the  thing  deposited, 
or  permit  it  to.be  used,  for  any  purpose,  without  the  consent 
of  the  depositor.  He  may  not,  if  it  is  purposely  fastened  by 
the  depositor,  open  it  without  the  consent  of  the  la.tter,  ex- 
cept in  case  of  necessity. 

HLstory:     Enacted  March   21,   1S72. 


§1836.  LIABILITY  FOR  DAMAGE  ARISING  FROM 
WRONGFUL  USE.  A  depositary  is  liable  for  any  damage 
happening  to  the  thing  deposited,  during  his  wrongful  use 
thereof,  unless  such  damage  must  inevitably  have  happened 
though  the  property  had  not  been  thus  used. 

History:     Enacted  March   21,   1872. 

§  1837.  SALE  OF  THING  IN  DANGER  OF  PERISH- 
ING. If  a  thing  deposited  is  in  actual  danger  of  perishing 
before  instructions  can  be  obtained  from  the  depositor,  the 
depositary  may  sell  it  for  the  best  price  obtainable,  and  re- 
tain the  proceeds  as  a  deposit,  giving  immediate  notice  of  his 
proceedings  to  the   depositor. 

History:     Enacted  March   21,   1872. 


§  1838.  INJURY  TO,  OR  LOSS  OF  THING  DEPOS- 
ITED. If  a  thing  is  lost  or  injured  during  its  deposit,  and 
the  depositary  refuses  to  inform  the  .depositor  of  the  circum- 
stances under  which  the  loss  or  injury  occurred,  so  far  as 
he   has   information   concerning   them,   or   wilfully   misrepre- 

662 


Tit.II,ch.II,art.I.]   services  and  liabilities.  §§  1839,  1840 

sents  the  circumstances  to  him.  the  depositary  is  presumed 
to  have  wilfully,  or  by  gross  negligence,  permitted  the  loss 
or  injury  to  occur. 

Hi-storj-:     Enacted  March   21,   1872. 

§  1839.     SERVICE     RENDERED     BY     DEPOSITARY. 

So  far  as  any  service  is  rendered  by  a  depositary,  or  re- 
(|uired  from  him,  his  duties  and  liabilities  are  prescribed  by 
the  title  on  employment  and  service. 

Historj-:     Enacted  March   21,   1872. 

§  1840.  EXTENT  OF  HIS  LIABILITY  FOR  NEGLI- 
GENCE. The  liability  of  a  depositary  for  negligence  cannot 
exceed  the  amount  which  he  is  informed  by  the  depositor, 
or  has  reason  to  suppose,  the  thing  deposited  to  be  worth. 

HUtory:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code    Amdts.    1873-4,    p.    244. 


663 


§§1844-1847  CIVIL  CODE.  [Div.III,Pt.IV. 


ARTICLE  II. 

GRATUITOUS  DEPOSIT. 

§  1S44.  Gratuitous   deposit,   what. 

§  1845.  Nature  of  involuntary   deposit. 

§  1846.  Degree  of  care   required   of  gratuitous   depositary. 

§  1847.  His    duties   cease,   when. 

§  1844.  GRATUITOUS  DEPOSIT,  WHAT.  Gratuitous 
deposit  is  a  deposit  for  which  the  depositary  receives  no  con- 
sideration  beyond   the   mere   possession    of   the   thing   depos 

ited. 

History:      Enacted  March   21,   1872. 

§  1845.     NATURE  OF  INVOLUNTARY  DEPOSIT.     An 

involuntary   deposit   is   gratuitous,    the   depositary   being   en- 
titled to  no  reward. 

Hi.story:      Enacted  March   21,  1872. 

§1846.  DEGREE  OF  CARE  REQUIRED  OF  GRATUI- 
TOUS DEPOSITARY.  A  gratuitous  depositary  must  use, 
at  least,  slight  care  for  the  preservation  of  the  thing  de- 
posited. 

History:      Enacted  March   21,   1872. 

§  1847.  HIS  DUTIES  CEASE,  WHEN.  The  duties  of  a 
gratuitous  depositary  cease: 

1.  Upon  his  restoring  the  thing  deposited  to  its  owner;  or, 

2.  Upon  his  giving  reasonable  notice  to  the  owner  to  re- 
move it,  and  the  owner  failing  to  do  so  within  a  reasonable 
time.  But  an  involuntary  depositary,  under  subdivision  two 
of  section  eighteen  hundred  and  fifteen,  cannot  give  such  no- 
tice until  the  emergency  which  gave  rise  to  the  deposit  is 
past. 

History-:      Enacted  March  21,   1872. 

664 


Tit.III,ch.II,art.IlI.]     deposit  for  HIRE.  §§1851-1854 


ARTICLE  III. 

STORAGE. 

§  1851.  Deposit   for   hire. 

§  1852.  Degree  of  care  required  of  depositary  for  hire. 

§  1853.  Rate  of  compensation   for  fraction   of  a  week,   etc. 

§  1854.  Termination    of    deposit. 

§  1855.  Same.      [On    payment    of   cliarges    to    become    due.] 

§  1856.  Lien    for    storage-charges    [and    money    advanced]. 

§  1857.  Storage   property   to  be   sold. 


§  1851.  DEPOSIT  FOR  HIRE.  A  deposit  not  gratuitous 
is  called  storage.  The  depositary  in  such  case  is  called  a  de- 
positarj'  for   hire. 

Hi.-story:     Enacted  March   21,   1S72. 


§  1852.  DEGREE  OF  CARE  REQUIRED  OF  DEPOS- 
ITARY FOR  HIRE.  A  depositary  for  hire  must  use  at 
least  ordinary  care  for  the  preservation  of  the  thing  depos- 
ited. 

History:      Enacted  March   21,  1872. 

§  1853.  RATE  OF  COMPENSATION  FOR  FRACTION 
OF  A  WEEK,  ETC.  In  the  absence  of  a  different  agree- 
ment or  usage,  a  depositary  for  hire  is  entitled  to  one  week's 
hire  for  the  sustenance  and  shelter  of  living  animals  during 
any  fraction  of  a  week,  and  to  half  a  month's  hire  for  the 
storage  of  any  other  property  during  anj-  fraction  of  a  half 
month. 

History:      Enacted  March   21,   1872. 

§1854.  TERMINATION  OF  DEPOSIT.  In  the  absence 
of  an  agreement  as  to  the  length  of  time  during  which  a  de- 

665 


§S  1855-1857  CTVTi.  CODE.  fDiv.HI.Pt.l V. 

posit  is  to  continue,  it  may  he  terminated  by  tlie  depositor  at 
anj'  time,  and  by  the  depositary  upon  reasonable  notice. 

History:      Enacted  March   21.   ISTi!. 

§  1855.  SAME.  [ON  PAYMENT  OF  CHARGES  TO 
BECOME  DUE.]  Notwithstanding  an  agreement  respect- 
ing the  length  of  time  during  which  a  deposit  is  to  continue, 
it  may  be  terminated  by  the  depositor  on  paying  all  that 
would  become  due  to  the  depositary  in  case  of  the  deposit  so 
continuing. 

History:      Enacted  March   21,  1872. 

§  1856.  LIEN  FOR  STORAGE-CHARGES.  [AND 
MONEY  ADVANCED.]  A  depositary  for  hire  has  a  lien 
for  storage  charges  and  for  advances  and  insurance  incurred 
at  the  request  of  the  bailor,  and  for  money  necessarily  ex- 
pended in  and  about  the  care,  preservation  and  keeping  of 
the  property  stored,  and  he  also  has  a  Hen  for  money  ad- 
vanced at  the  request  of  the  bailor,  to  discharge  a  prior  lien, 
and  for  the  expenses  of  a  sale  where  default  has  been  made 
in  satisfying  a  valid  lien.  The  rights  of  the  depositary  for 
hire  to  such  lien  are  regulated  by  the  title  on  liens. 

History:  Enacted  March  31,  1891,  Stats,  and  Amdts.  1S91, 
p.    470;    amended   Api'H    19.   1909,   Stats,   and   Amdts.    1909,   p.    1001. 

§  1857.     STORAGE     PROPERTY     TO      BE     SOLD.     If 

from  any  cause  other  than  want  of  ordinary  care  and  dili- 
gence on  his  part,  a  depositary  for  hire  is  unable  to  deliver 
perishable  property,  baggage,  or  luggage  received  by  him 
for  storage,  or  to  collect  his  charges  for  storage  due  thereon, 
he  may  cause  such  property  to  be  sold,  in  open  market,  to 
satisfy  his  lien  for  storage;  provided,  that  no  property  except 
perishable  property  shall  be  sold,  under  the  provisions  of 
this  section,  upon  which  storage  charges  shall  not  be  due 
and  unpaid  for  one  year  at  the  time  of  such   sale. 

Hi.story:  Enacted  March  31,  1.S91,  Stats,  and  Amdts.  1S91, 
p.   470. 

666 


Tit.lll,ch.ll,art.llla.]     WAREHOUSEMEN.  §1858 


[This  article,  including  §§  1858-1858f,  was  added  by  Code 
Commission  as  a  part  of  article  III,  Act  of  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  pp.  409-411,  held  unconstitutional,  see 
history,  |  4  ante;  Commissioner  Davis  procured  a  re-enactment 
of  these  sections — improperly  designating  them  as  "Chapter 
llla" — March  21.  1905,  Stats,  and  Amdts.   1905,  pp.  611-613.] 

ARTICLE  Ilia. 

WAREHOUSEMEN. 

S  1858.     Warehouse   receipts,    when   must   not   be    issued. 

§  1858a.  Property  not  to  be  removed  without  consent  in  writ- 
ing. 

§  185Sb.  Warehouse  receipts,  classification  and  effect  of. 

§  185'8c.  Indorsement  on  negotiable  receipt  of  properly  de- 
livered. 

§  1858d.  Non-negotiable  receipts  and   their   effect. 

§  1858e.   Liability   for  loss  by   fire. 

§  1858f.     Penalties   and   liabilities. 

§  1858.  WAREHOUSE  RECEIPTS,  WHEN  MUST 
NOT  BE  ISSUED.  A  warehouseman,  wharfinger,  or  other 
person  doing  a  storage  business  must  not  issue  any  receipt 
or  voucher  for  any  merchandise,  grain,  or  other  product  or 
thing  of  value,  to  any  person  purporting  to  be  the  owner 
thereof,  nor  to  any  person  as  security  for  any  indebtedness 
or  for  the  performance  of  any  obligation,  unless  such  mer- 
chandise, grain,  or  other  product,  commodity,  or  thing  has 
lieen,  in  good  faith,  received  by  such  warehouseman,  wharf- 
inger, or  other  person,  and  is  in  his  store  or  under  liis  con- 
trol at  the  time  of  issuing  his  receipt;  nor  must  any  second 
receipt  for  any  such  property  be  issued  while  a  former  re- 
ceipt for  any  part  thereof  is  outstanding  and  uncanceled. 

History:  Enacted  Marcli  21,  1905.  See  introductorj-  note  ('• 
article. 

667 


§§  1858a-1858c  CIVIL  CODE.  [Div.III,Pt.IV. 

§  1858a.  PROPERTY  NOT  TO  BE  REMOVED  WITH- 
OUT CONSENT  IN  WRITING.  No  warehouseman,  wharf- 
inger, or  other  person  must  sell  or  encumber,  ship,  transfer, 
or  remove  beyond  his  immediate  control  any  property  for 
which  a  receipt  has  been  given,  without  the  consent  in  writ- 
ing of  the  person  holding  such  receipt  plainly  indorsed  there- 
on  in   ink. 

History:  Enacted  March  21,  1905.  See  introductory  note  to 
article. 


§  1858b.  WAREHOUSE  RECEIPTS,  CLASSIFICA- 
TION AND  EFFECT  OF.  Warehouse  receipts  for  prop- 
erty stored  are  of  two  classes:  first,  transferable  or  nego- 
tiable; and  second,  non-transferable  or  non-negotiable.  Un- 
der the  first  of  these  classes  the  property  is  transferable  bj' 
indorsement  of  the  party  to  whose  order  such  receipt  was 
issued,  and  such  indorsement  is  a  valid  transfer  of  the  prop- 
erty represented  by  the  receipt,  and  may  be  in  blank  or  to 
the  order  of  another.  All  warehouse  receipts  must  distinctly 
state  on  their  face  for  what  they  are  issued  and  its  brands 
and  distinguishing  marks  and  the  rate  of  storage  per  month 
or  season,  and,  in  the  case  of  grain,  the  kind,  the  number 
of  sacks,  and  pounds.  If  a  receipt  is  not  negotiable,  it  must 
have  printed  across  its  face,  in  red  ink,  in  bold,  distinct  let- 
ters, the  word  "Non-negotiable." 

History:  Enacted  March  21,  1905.  See  introductory  note  to 
article. 

§  1858c.  INDORSEMENT  ON  NEGOTIABLE  RE- 
CEIPT OF  PROPERTY  DELIVERED.  If  a  negotiable 
receipt  is  issued  for  any  property,  neither  the  person  issu- 
ing it  nor  any  other  person  into  whose  care  or  control  the 
property  comes  must  deliver  any  part  thereof  without  in- 
dorsing on  the  back  of  the  receipt,  in  ink,  the  amount  and 
date  of  the  delivery;  nor  can  he  be  allowed  to  make  any  off- 

668 


Tif.IIT,ch.II.art.IIIa.]    LOSS  BY  FIRE.  §§  1858d-1858f 

set,  claim,  or  demand  other  than  is  expressed  on  the  face 
of  the  receipt,  when  called  upon  to  deliver  any  property  for 
which  it  was  issued. 

History:  Enacted  March  21,  1905.  See  Introductory  note  to 
article. 

§  1858d.  NON-NEGOTIABLE  RECEIPTS  AND  THEIR 
EFFECT.  If  a  non-negotiable  receipt  is  issued  for  any 
property,  neither  the  person  issuing  nor  any  other  person 
in  whose  care  or  control  the  property  comes  must  deliver 
any  part  thereof,  except  upon  the  written  order  of  the  per- 
son to  whom  the  receipt  was  issued. 

History:  Enacted  March  21,  1905.  See  introductory  note  to 
article. 

§  1858e.  LIABILITY  FOR  LOSS  BY  FIRE.  No  ware- 
houseman or  other  person  doing  a  general  storage  business 
is  responsible  for  any  loss  or  damage  to  property  by  fire 
while  in  his  custody,  if  he  exercises  reasonable  care  and  dili- 
gence for  its  protection  and  preservation. 

History:  Enacted  March  21,  1905.  See  introductory  note  to 
article. 

§  1858f.  PENALTIES  AND  LIABILITIES.  Every 
warehouseman,  wharfinger,  or  other  person  who  violates 
any  of  the  provisions  of  sections  eighteen  hundred  and  fifty- 
eight  to  eighteen  hundred  and  fifty-eight  e,  inclusive,  is 
guilty  of  a  felony,  and,  upon  conviction  thereof,  may  be 
fined  in  a  sum  not  exceeding  five  thousand  dollars,  or  im- 
prisoned in  the  state  prison  not  exceeding  five  years,  or 
both.  He  is  also  liable  to  any  person  aggrieved  by  such  vio- 
lation for  all  damages,  immediate  or  consequent,  which  he 
may  have  sustained  therefrom,  which  damages  may  be  recov- 
ered by  a  civil  action  in  any  court  of  competent  jurisdiction, 
whether  the  oflfender  has  been  convicted  or  not. 

History:  Enacted  March  21,  1905.  See  introductory  note  to 
article. 

669 


/ 


§§1859,1860  civil.  CODK.  |  Div.lU.Pt.IV. 


ARTICLE  IV. 

INNKEEPERS. 

§  1859.  Innkeeper's   liability. 

§  1860.  How   exempted  from   liability. 

§  1861.  Lien   for  charges   on   baggage. 

§  1862.  Unclaimed   baggage   may   be   .sold   at  auction;    notice   of. 

§  1863.  Keepers    to   post   rates   of   charges. 

§  1859.  INNKEEPER'S  LIABILITY.  The  liability  of  an 
innkeeper,  hotel  keeper,  boarding-house  and  lodging-house 
keeper,  for  losses  of  or  injuries  to  personal  property,  other 
than  money,  placed  by  his  guests,  boarders,  or  lodgers  un- 
der His  care,  is  that  of  a  depositary  for  hire; 

[Amount  of  liability.]  Provided,  however,  that  in  no  case 
shall  such  liability  exceed  the  sum  of  one  hundred  dollars 
for  each  trunk  and  its  contents,  fifty  dollars  for  each  valise 
or  traveling-bag  and  contents,  and  ten  dollars  for  each  box, 
bundle  or  package  and  contents,  so  placed  under  his  care, 
unless  he  shall  have  consented  in  writing  with  the  owner 
thereof  to  assume  a  greater  liability. 

Hlstorj'i  Enacted  March  21,  1872;  amended  March  12,  1893. 
Stats,   and  Amdts.  1895.  p.   49. 

§  1860.  HOW  EXEMPTED  FROM  LIABILITY.  If  an 
innkeeper,  hotel  keeper,  boarding-house  or  lodging-house 
keeper,  keeps  a  fire-proof  safe,  and  gives  notice  to  a  guest, 
boarder,  or  lodger,  either  personally  or  by  putting  up  a  print- 
ed notice  in.  a  prominent  place  in  the  office  or  the  room  occu- 
pied by  the  guest,  boarder,  or  lodger,  that  he  keeps  such  a 
safe  and  will  not  be  liable  for  money,  jewelry,  documents, 
or  other  articles  of  unusual  value  and  small  compass,  unless 
placed  therein,  he  is  not  liable,  except  so  far  as  his  own  acts 
shall  contribute,   thereto,   for  any  loss   of  or  injury  to  such 

670 


Tit.III.cll.II.art.R'.l       ('riARGES— LTEN   OX    P.ACCxAGE.    §1861 

articles,  if  not  deposited  with  him  to  be  phiced  therein,  nor 
in  any  case  more  than  the  sum  of  two  hundred  and  fifty  dol- 
lars for  any  or  all  such  property  of  any  individual  guest, 
boarder,  or  lodger,  unless  he  shall  have  given  a  receipt  in 
writing  therefor  to  such  guest,  boarder,  or  lodger. 

I 
History:      Enacted    March    21,    1S72;    amendecl    March    12,    1895. 
Stat.s.  and  Amdt.';.   1S9.5.  p.   50. 

§  1861.  LIEN  FOR  CHARGES  ON  BAGGAGE.  Hotel, 
inn,  l)oarding-house  and  lodging-house  keepers  shall  have  a 
lien  upon  the  baggage  and  other  property  belonging  to  or 
legally  under  the  control  of  their  guests,  or  boarders,  or  lodg- 
ers which  may  be  in  such  hotel,  inn,  or  boarding  or  lodging- 
house  for  the  proper  charges  due  from  such  guests,  or  board- 
ers, or  lodgers,  for  their  accommodation,  board  and  lodging 
and  room  rent,  and  such  extras  as  are  furnished  at  their  re- 
quest, and  for  all  money  paid  for  or  advanced  to  such  guests, 
or  boarders  or  lodgers,  and  for  the  cost  of  enforcing  such 
lien,  with  the  right  to  the  possession  of  such  baggage  and 
other  property  until   such   charges  and  moneys  are  paid; 

[May  sell  baggage.]  and  unless  such  charges  and  moneys 
shall  be  paid  within  sixty  days  from  the  time  when  the  same 
become  due,  said  hotel,  inn,  boarding-house  or  lodging-house 
keeper  may  sell  said  baggage  and  property  at  public  auction 
to  the  highest  bidder,  after  giving  notice  of  such  sale  by 
publication  of  a  notice  containing  the  name  of  the  debtor, 
the  amount  due,  a  brief  description  of  the  property  to  be  sold, 
and  the  time  and  place  of  such  sale,  once  every  week  for  four 
successive  weeks  prior  to  the  day  of  sale,  in  a  newspaper  of 
general  circulation  in  the  county  in  which  said  hotel,  inn, 
boarding-house  or  lodging-house  is  situated  and  also  by 
mailing,  at  least  fifteen  days  before  such  sale,  a  copy  of  such 
notice  addressed  to  such  guest,  boarder  or  lodger  at  his  post 
office  address,  if  known,  and  if  not  known,  such  notice  shall 
be  addressed  to  such  guest,  boarder  or  lodger  at  the  place 
where  such  hotel,  inn,  boarding-house  or  lodging-house  is 
situated; 

671 


§1861  CIVIL   CODE.  [Div.III.Pt.IV. 

[Residue.]  and  after  satisfying  such  lien  out  of  the  pro- 
ceeds of  such  sale  together  with  any  reasonable  costs  that 
may  have  been  incurred  in  enforcing  said  lien,  the  residue  of 
said  proceeds  of  sale,  if  any,  sha,!!  upon  demand  made  within 
six  months  after  such  sale,  be  paid  by  said  hotel,  inn,  board- 
ing-house, or  lodging-house  keeper  to  such  guest,  boarder  or 
lodger;  and  if  not  demanded  within  six  months  from  the 
date  of  such  sale,  such  residue  shall  be  paid  into  the  treas- 
ury of  the  county  in  which  such  sale  took  ^ace;  and  if  the 
same  be  not  claimed  by  the  owner  thereof,  or  his  legal  rep- 
resentatives, within  one  year  thereafter,  the  same  shall  be 
paid  into  the  general  fund  of  said  county;  and  such  sale 
shall  be  a  perpetual  bar  to  any  action  against  said  hotel,  inn, 
boarding-house  or  lodging-house  kepeer  for  the  recovery  of 
such  baggage  or  property  or  of  the  value  thereof,  or  for  anj- 
damages  growing  out  of  the  failure  of  such  guest,  boarder  or 
lodger  to  receive  such  baggage  or  property; 

[Baggage  not  belonging  to  guest.]  provided,  however, 
that  is  any  baggage  or  property  becoming  subject  to  the 
lien  herein  provided  for  does  not  belong  to  the  guest,  lodger 
or  boarder  who  incurred  the  charges  or  indebtedness  secured 
thereby,  at  the  time  when  such  charges  or  indebtedness  was 
incurred,  and  if  the  hotel,  inn,  boarding  or  lodging-house 
keeper  entitled  to  such  lien  receives  notice  of  such  fact  at 
any  time  before  the  sale  of  such  baggage  or  property  here- 
under, then,  and  in  that  event,  such  baggage  and  property 
which  is  subject  to  said  lien  and  did  not  belong  to  said  guest, 
boarder  or  lodger  at  the  time  when  such  charges  or  indebt- 
edness was  incurred  shall  not  be  subject  to  sale  in  the  man- 
ner hereinbefore  provided,  but  such  baggage  and  property 
may  be  sold  in  the  manner  provided  by  the  Code  of  Civil 
Procedure  for  the  sale  of  property  under  a  writ  of  execu- 
tion, to  satisfy  a  judgment  obtained  in  any  action  brought 
to  recover  the  said  charges  or  indebtedness. 

Histiry:  Enacted  April  1,  1876,  Code  Amdts.  1875-6,  p.  78; 
amended  June  7,  1915,  Stats,  and  Amdts.  1915,  p.  1285.  In  effect 
August   8,   1915.  ■ 

672 


Tit.III,ch.II,art.IV.]     UNCLAIMED  BAGGAGE.        §§1862,1863 

§  1862.  UNCLAIMED  BAGGAGE  MAY  BE  SOLD  AT 
AUCTION;  NOTICE  OF.  Whenever  any  trunk,  carpet- 
bag, valise,  box,  bundle,  or  other  baggage  has  heretofore 
come,  or  shall  hereafter  come  into  the  possession  of  the 
keeper  of  any  hotel,  inn,  boarding  or  lodging  house,  as  such, 
and  has  remained  or  shall  remain  unclaimed  for  the  period 
of  six  months,  such  keeper  may  proceed  to  sell  the  same  at 
public  auction,  and  out  of  the  proceeds  of  such  sale  may  re- 
tain the  charges  for  storage,  if  any,  and  the  expenses  of  ad- 
vertising and  sale  thereof;  but  no  such  sale  shall  be  made 
until  the  expiration  of  four  weeks  from  the  first  publication 
of  notice  of  such  sale  in  a  newspaper  published  in  or  near- 
est the  city,  town,  village,  or  place  in  which  said  hotel,  inn, 
boarding  or  lodging  house  is  situated.  Said  notice  shall  be 
published  once  a  week,  for  four  successive  weeks,  in  some 
newspaper,  daily  or  weekly,  of  general  circulation,  and  shall 
contain  a  description  of  each  trunk,  carpet-bag,  valise,  box, 
bundle,  or  other  baggage,  as  near  as  may  be;  the  name  of  the 
owner,  if  known;  the  name  of  such  keeper,  and  the  time  and 
place  of  sale;  and  the  expenses  incurred  for  advertising  shall 
be  a  lien  upon  such  trunk,  carpet-bag,  valise,  box,  bundle, 
or  other  baggage,  in  a  ratable  proportion,  according  to  the 
value  of  such  piece  of  property,  or  thing,  or  article  sold;  and 
in  case  any  balance  arising  from  such  sale  shall  not  be 
claimed  by  the  rightful  owner  within  one  week  from  the  day 
of  said  sale,  the  same  shall  be  paid  into  the  treasury  of  the 
county  in  which  such  sale  took  place;  and  if  the  same  be 
not  claimed  by  the  owner  thereof,  or  his  legal  representatives, 
within  one  year  thereafter,  the  same  shall  be  paid  into  the 
general  fund  of  said  county. 

History:      Enacted    April    1,    1S76,  Code   Amdt.s.    l,S75-6,   p.    78. 

§  1863.     KEEPERS  TO  POST  RATES     OF     CHARGES. 

Every  keeper  of  a  hotel,  inn,  boarding  or  lodging  house,  shall 
post  in  [a]  conspicuous  place  in  the  office  or  public  room, 
and  in   every  bedroom  of  said  hotel,  boarding-house,   inn,  or 

••;-•  673 


§1863  CIVIL    CODE.  [Div.III.Pt.IV. 

lodging-house,  a  printed  copy  of  this  section,  and  a  statement 
of  charge  or  rate  of  charges  by  the  day,  and  for  meals  or 
items  furnished,  and  for  lodging.  No  charge  or  sum  shall 
be  collected  or  received  by  any  such  person  for  any  service 
not  actually  rendered,  or  for  any  item  not  actually  delivered, 
or  for  any  greater  or  other  sum  than  he  is  entitled  to  by  the 
general  rules  and  regulations  of  said  hotel,  inn,  boarding  or 
lodging  house.  For  any  violation  of  this  section,  or  any  pro- 
vision herein  contained,  the  offender  shall  forfeit  to  the  in- 
jured party  three  times  the  amount  of  the  sum  charged  in 
excess  of  what  he  is  entitled  to. 

History:  Enacted  April  1,  1876,  Code  Amdts.  1875-6,  p.  79; 
amended  by  Code  Commission,  Act  March  16,  1901,  Stats,  and 
Amdts.  1900-1,  p.  411,  held  unconstitutional,  see  history,  §  4 
ante. 


674 


Tit.III.ch.II.art.V.]     NOTICE  TO  OWNER.  §§1864,1865 


ARTICLE  V. 

FINDING. 

§  1S64.  Obligation   of   fmcler. 

§  I860.  Finder  to  notify  owner.     Duty  wiiere  owner  not  known. 

§  1866.  Claimant  to  prove   ownership. 

§  1867.  Reward,  etc.,  to  finder. 

§  1868.  Finder  may  put  thing-  found  on  storage. 

§  1869.  T\'hen  finder  may  sell  the  thing  found. 

§  1870.  How  sale  is  to  be  made. 

§  1871.  Property  vests   in   finder,   when.      Publication    in    certain 

cases.     Liability   of  finder  to  owner. 

§  1S72.  Thing  abandoned. 


§  1864.  OBLIGATION  OF  FINDER.  One  who  finds  a 
thing  lost  is  not  bound  to  take  charge  of  it,  but  if  he  does 
so  he  is  thenceforward  a  depositary  for  the  owner,  with  the 
rights  and  obligations  of  a  depositary  for  hire. 

History:     Enacted  March   21,  1872. 

§  1865.  FINDER  TO  NOTIFY  OWNER.  DUTY 
WHERE  OWNER  NOT  KNOWN.  If  the  finder  of  a  thing, 
other  than  a  domestic  animal,  takes  possession  thereof,  or 
if  a  person  saves  any  such  animal  from  drowning  or  starva- 
tion, he  must,  within  a  reasonable  time,  inform  the  owner 
thereof,  if  known,  and  make  restitution  to  him  upon  demand, 
without  compensation,  except  a  reasonable  charge  for  sav- 
ing and  caring  therefor.  If  the  owner  is  not  known  to  such 
finder  or  saver,  he  must,  within  five  days,  file  an  affidavit 
with  the  justice  of  the  peace  of  the  county  whose  office  is 
nearest  to  the  place  of  such  finding  or  saving,  particularly 
describing  the  property  and  the  time,  place,  and  circum- 
stances under  which  it  was  found  or  saved.  Such  justice 
must  then  summon  three  disinterested  persons  to  appraise 
the  property.     Thev,  or  a  majority  of  them,  must  make  two 

675 


§§1866-1869  CIVIL  CODE.  [Div.II  I.Pt.l  V. 

lists  of  the  valuation  and  description  of  the  property,  by 
them  verified,  and  deliver  one  of  such  lists  to  the  justice 
of  the  peace,  to  be  kept  by  him  on  file  in  his  office,  and  the 
other  list  must  be  delivered  to  such  finder  or  saver,  who 
must,  within  five  days  thereafter,  cause  It  to  be  filed  for  rec- 
ord in  the  office  of  the  county  recorder  of  the  county,  who 
must  record  it  in  a  book  known  as  the  "Estray  and  Lost 
Propert}'  Book." 

History:  Enacted  March  21,  1S72;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  411, 
held  unconstitutional,  see  history,  §  4  ante;  re-enacted  March 
21,   1905,  Stats,   and  Amdts.   1905.  p.   613. 

§1866.     CLAIMANT   TO    PROVE    OWNERSHIP.     The 

finder  of  a  thing  may,  in  good  faith,  before  giving  it  up,  re- 
quire reasonable  proof  of  ownership  from  any  person  claim- 
ing it. 

Hi.Htory:      Enacted  March    21.   1S72. 

§  1867.  REWARD,  ETC.,  TO  FINDER.  The  finder  of  a 
thing  is  entitled  to  compensation  for  all  expenses  necessar- 
ily incurred  by  him  in  its  preservation,  and  for  any  other 
service  necessarilj'  performed  by  him  about  it,  and  to  a  rea- 
sonable reward  for  keeping  it. 

HLstorj-:      Enacted  March    21,  1872. 

§1868.  FINDER  MAY  PUT  THING  FOUND  ON 
STORAGE.  The  finder  of  a  thing  may  exonerate  himself 
from  liability  at  any  time  by  placing  it  on  storage  with  any 
responsible  person  of  good  character,  at  a  reasonable  ex- 
pense. 

History:      Enacted  March   21,   1S72. 


§1869.  WHEN  FINDER  MAY  SELL  THE  THING 
FOUND.  The  finder  of  a  thing  may  sell  it,  if  it  is  a  thing 
which  is  commonly  the  subject  of  sale,  when  the  owner  can- 

676 


Tit.IIl,ch.lI,art.IV.]    VESTING  OF  propp:rty.     §§  1870,  1871 

not,  with  reasonable  diligence  be  found,  or,  being  found,  re- 
fuses upon  demand  to  pay  the  lawful  charges  of  the  finder 
in  the  following  cases: 

1.  When  the  thing  is  in  danger  of  perishing,  or  of  losing 
the  greater  part  of  its  value;  or, 

2.  When  the  lawful  charges  of  the  finder  amount   to  two 
thirds  of  its  value. 

History:      Enacted  March    21,   1872. 


§  1870.  HOW  SALE  IS  TO  BE  MADE.  A  sale  under 
the  provisions  of  the  last  section  must  be  made  in  the  same 
manner  as  the  sale  of  a  thing  pledged. 

History:     Enactecl  March   21,  1S72. 

§  1871.  PROPERTY  VESTS  IN  FINDER,  WHEN. 
PUBLICATION  IN  CERTAIN  CASES.  LIABILITY  OF 
FINDER  TO  OWNER.  If  no  owner  appears  within  six 
months  after  such  finding  or  saving  and  offers  reasonable 
proof  of  his  ownership,  and  compensates,  or  in  good  faith 
offers  to  compensate,  the  finder  or  saver  for  the  expense 
necessarily  incurred  by  him,  then  such  property  vests  in 
such  finder  or  saver,  unless  it  is  of  greater  value  than  twenty 
dollars.'  If  of  such  greater  value,  he  must  publish  a  copy 
of  such  verified  list  for  three  successive  weeks  in  some  news- 
paper of  general  circulation  published  in  the  county,  and  if 
the  owner  does  not,  within  one  year  after  the  completion 
of  such  publication,  prove  the  property  and  pay,  or  in  good 
faith  offer  to  pay,  all  charges  thereon,  the  title  thereto  vests 
in  such  finder  or  saver.  If  the  finder  or  saver  of  property 
does  not  comply  with  the  provisions  of  section  eighteen  hun- 
dred and  sixty-five,  or  if,  though  lie  does  so  comply,  he  re- 
fuses to  surrender  the  property  to  an  owner  who  has  made 
reasonable  proof  of  ownership,  and  paid,  or  in  good  faith 
offered  to  pay,   all  legal  charges  thereon,  he   is  liable   to  the 

677 


§1872  CIVIL  CODE.  [Div.IILPt.IV. 

owner  for  double  the  value  of  the  property,  and  the  owner 
may  exonerate  himself  from  all  liability  arising  out  of  such 
property  by  surrendering,  or  offering  to  surrender,  it  in  sat- 
isfaction  thereof. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  412, 
held  unconstitutional,  see  history,  §  4  ante;  re-enacted  March 
21,    1905,    Stats,    and   Amdts.    1905,   p.    614. 

§  1872.  THING  ABANDONED.  The  provisions  of  this 
article  have  no  application  to  things  which  have  been  inttr.i- 
tionally  abandoned  by  their  owners. 

History:      Enacted  March   21,  1872. 


678 


Tit.III.ch.III.Tit.IV.ch.L]     LOAN.  §1878 


CHAPTER  III. 

DEPOSIT   FOR    EXCHANGE. 

§  1878.     Relations   of   the   parties. 

§  1878.  RELATIONS  OF  THE  PARTIES.  A  deposit 
for  exchange  transfers  to  the  depositary  the  title  to  the 
thing  deposited,  and  creates  between  him  and  the  depositor 
the  relation  of  debtor  and  creditor  merely. 

History:      Enacted  March   21,  1ST2. 


TITLE   IV. 

LOAN 

Chapter  I.     Loan    for    Use,    §§  1884-1896 

II.     Loan  for  Exchange,  §§  1902-1906. 
III.     Loan  of  Money,  §§  1912-1920. 


CHAPTER  I. 

LOAN    FOR    USE. 

§  1884.  Loan,   what. 

§  1SS5.  Title  to  property  lent. 

§  1886.  Care    required   of   borrower. 

§  1887.  Same.      [Of  animal  for   use.] 

§  1888.  Degree   of   skill. 

§  1889.  Borrower,   when    to   repair   injuries. 

§  1890.  Use   of   thing   lent. 

§  1891.  Relending  forbidden. 

§  1892.  Borrower,   when    to    bear   expenses. 

679 


§§1884-1889  (MVTT,  rODE.  |  Div.TTI.Pt.IV. 

§  1893.  Lender  liable  for  defects. 

§  1894^  Lender  may  require  return  <jf  thing  Jent. 

§  189,").  Wlien    returnable    without   demand. 

§  l,S9fi.  Place  of  return. 

§  1884.  LOAN,  WHAT.  A  loan  for  use  is  a  contract  by 
which  one  gives  to  another  the  temporary  possession  and  use 
of  personal  property,  and  the  latter  agrees  to  return  the  same 
thing  to  him  at  a  future  time,  without  reward  for  its  use. 

HLslory:     Enacted  March  21,   1,S72. 

§  1885.  TITLE  TO  PROPERTY  LENT.  A  loan  for  use 
does  not  transfer  the  title  to  the  thing;  and  all  its  increase 
during  the  period   of   the   loan   belongs  to   the   lender. 

History:     Enacted  March  21,   1,572. 


§  1886.  CARE  REQUIRED  OF  BORROWER.  A  bor- 
rower for  use  must  use  great  care  for  the  preservation  in 
safety  and  in  good  condition   of  the  thing  lent. 

History:     Enacted  March   21,   1S72. 

§  1887.     SAME.      [OF   ANIMAL   FOR   USE.]      One    who 

borrows  a  living  animal  for  use,  must  treat  it  with  great 
kindness,  and  provide  everything  necessary  and  suitable  for 
it. 

History:      Enacted  March   21,   1S72. 

§  1888.  DEGREE  OF  SKILL.  A  borrower  for  use  is 
bound  to  have  and  to  exercise  such  skill  in  the  care  of  the 
thing  lent  as  causes  the  lender  to  believe  him  to  possess. 

History:     Enacted  March   21.   1872. 

§  1889.     BORROWER,  WHEN  TO  REPAIR  INJURIES. 

A  borrower  ftir  use  must  repair  all  deteriorations  or  injuries 

680 


Tit.IV.ch.l.]        USE— RELENDING— EXPENSES.         §§  1890-1894 

to   the    thing   lent,   which   are    occasioned   by   his    negligence, 
however  slight. 

History:      Enacted  March   21,   1S72. 

!^  1890.  USE  OF  THING  LENT.  The  borrower  of  a 
thing  for  use  may  use  it  for  such  purposes  only  as  the  lender 
might  reasonably  anticipate  at  the  time  of  lending. 

History:     Enacted  March   21,   1872. 

§  1891.  RELENDING  FORBIDDEN.  The  borrower  of 
a  thing  for  use  must  not  part  with  it  to  a  third  person,  with 
out  the  consent  of  the  lender. 

History:      Enacted  March   21,    1ST 2. 


§  1892.     BORROWER,  WHEN   TO    BEAR   EXPENSES. 

The  borrower  of  a  thing  for  use  must  bear  all  its  expenses 
during  the  loan,  except  such  as  are  necessarily  incurred  by 
him  to  preserve  it  from  unexpected  and  unusual  injury.  For 
such  expenses  he  is  entitled  to  compensation  from  the  lender, 
who  may,  however,  exonerate  himself  by  surrendering  the 
thing   to    the   borrower. 

History:     Enacted  March  21,   1S72. 

§  1893.  LENDER  LIABLE  FOR  DEFECTS.  The  lend- 
er of  a  thing  for  use  must  indemnify  the  borrower  for  dam- 
age caused  by  defects  or  vices  in  it,  which  he  knew  at  the 
time  of  lending,  and  concealed  from   the  borrower. 

History:      Enacted   March    21,    1S72. 

§  1894.  LENDER  MAY  REQUIRE  RETURN  OF 
THING  LENT.  The  lender  of  a  thing  for  use  may  at  any 
time  require  its  return,  even  though  he  lent  it  for  a  specified 
time  or  i)urpose.     But  if,  on  the  faith  of  such  an  agreement, 

681 


§§1895,1896  CIVIL  CODE.  [Div.III,Pt.I V. 

the  borrower  has  made  such  arrangements  that  a  return  of 
the  thing  before  the  period  agreed  upon  would  cause  him  loss, 
exceeding  the  benefit  derived  by  him  from  the  loan,  the  lend- 
er must  indemnify  him  for  such  loss,  if  he  compels  such  re- 
turn,  the   borrower   not   having   in    any   manner   violated   his 

duty. 

History:     Enacted  March  21,   1872. 

§  1895.     WHEN  RETURNABLE  WITHOUT  DEMAND. 

If  a  thing  is  lent  for  use  for  a  specified  time  or  purpose,  it 
must  be  returned  to  the  lender  without  demand,  as  soon  as 
the  time  has  expired,  or  the  purpose  has  been  accomplished. 
In   other  cases  it   need   not  be  returned  until   demanded. 

Hi-story:     Enacted  March  21,   1872. 

§  1896.  PLACE  OF  RETURN.  The  borrower  of  a  thing 
for  use  must  return  it  to  the  lender,  at  the  place  contem- 
plated by  the  parties  at  the  time  of  lending;  or  if  no  partic- 
ular place  was  so  contemplated  by  them,  then  at  the  place 
where  it  was  at  that  time. 

History:     Enacted  March  21,   1872. 


682 


Tit.IV.ch.n.]  LOAN   FOR   EXCHANGE.  §§  1902-1905 


CHAPTER  II. 

LOAN  FOR  EXCHANGE. 

§  1902.  Loan    for    exchange,   what. 

§  1903.  Same.      [Optional    loan.] 

§  1904.  Title   to  property  lent. 

§  1905.  Contract   cannot   be   modified   by    lender. 

S1906.  Certain   sections  applicable. 

§  1902.  LOAN  FOR  EXCHANGE,  WHAT.  A  loan  for 
exchange  is  a  contract  by  which  one  delivers  personal  prop- 
erty to  another,  and  the  latter  agrees  to  return  to  the  lender 
a  similar  thing  at  a  future  time,  without  reward  for  its  use. 

History:      Enacted  March  21,   1S72. 

§  1903.  SAME.  [OPTIONAL  LOAN.]  A  loan,  which 
the  borrower  is  allowed  by  the  lender  to  treat  as  a  loan  for 
use,  or  for  exchange,  at  his  option,  is  subject  to  all  the  pro- 
visions  of  this   chapter. 

History:      Enacted  March   21,   1872. 

§  1904.  TITLE  TO  PROPERTY  LENT.  By  a  loan  for 
exchange  the  title  to  the  thing  lent  is  transferred  to  the  bor- 
rower, and  he  must  bear  all  its  expenses,  and  is  entitled  to 
all  its  increase. 

History:      Enacted  March   21,  1872. 

§  1905.  CONTRACT  CANNOT  BE  MODIFIED  BY 
LENDER.  A  lender  for  exchange  cannot  reciuirc  the  bor- 
rower to  fulfil  his  obligations  at  a  time,  or  in  a  manner,  dif- 
ferent from  that  which  was  originally  agreed  upon. 

History:      Enacted  March   21,   1872. 

683 


§1906  CIVIL  PODR  [Div.TTl.Pt.lV. 

§  1906.  CERTAIN  SECTIONS  APPLICABLE.  Sections 
eighteen  hundred  and  ninety-three,  eighteen  hundred  and 
ninety-five,  and  eighteen  hundred  and  ninety-six.  apply  to  a 
loan   for   exchange. 

History:     Enacted  March   21,  1872. 


684 


Tit.IV.ch.lIT.I  IX)AN  OF  MONEY.  §§1Q12J01.1 


CHAPTER  III. 

LOAN   OF    MONEV. 

[Commissioners'  note. — "Originally  no  interest  was  allowed 
upon  a  loan  of  money;  but  with  the  progress  of  business  it  be- 
came necessary,  and  the  transaction  thus  entered  into,  al- 
though in  strictness  a  hiring,  is  universally  known  as  a  loan. 
This  use  of  the  word  having  obtained  so  long,  it  would  be  idle 
to  attempt  to  change  it."] 

\ 

§1912.  Loan    of    money.       [What    is.] 

§  1913.  Loan  to  be  repaid   in  current  money. 

§  1914.  Interest  on  loan. 

§  1915.  Interest,   what. 

§  1916.  Annual   rate. 

§  1917.  Legal   interest. 

§  1918.  Same.      [By   agreement,   any    rate.] 

§  1919.  Interest   becomes   part   of  principal,   when. 

§  1920.  Interest   on   judgment. 


§  1912.  LOAN  OF  MONEY.  [WHAT  IS.]  A  loan  of 
money  is  a  contract  by  which  one  delivers  a  sum  of  money  to 
another,  and  the  latter  agrees  to  return  at  a  future  time  a  sum 
equivalent  to  that  which  he  borrowed.  A  loan  for  mere  use 
is  governed  by  the  chapter  on  loan  for  use. 

Ili.Htor.v:      Enacted   March    21,    1872. 

§  1913.  LOAN  TO  BE  REPAID  IN  CURRENT  MON- 
EY. A  borrower  of  money,  unless  there  is  an  express  con- 
tract to  the  contrary,  must  pay  the  amount  due  in  such  money 
as  is  current  at  the  time  when  the  loan  becornes  due,  wheth- 
er such  money  is  worth  more  or  less  than  the  actual  money 
lent. 

History:     Enacted  March   21,   1S72. 

.685 


§§1914-1918  CIVIL    CODE.  [Div.III.Pt.IV. 

§1914.  INTEREST  ON  LOAN.  Whenever  a  loan  of 
money  is  made,  it  is  presumed  to  be  made  upon  interest,  un- 
less it  is  otherwise  expressly  stipulated  at  the  time  in  writ- 
ing. 

History:  Enacted  March  21,  1872;  amended  March  30,  1871, 
Code   Amdts.    1873-4,  p.    245. 

§  1915.  INTEREST,  WHAT.  Interest  is  the  compensa- 
tion allowed  by  law  or  fixed  by  the  parties  for  the  use,  or 
forbearance,   qr   detention   of  money. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code   Amdts.    1S73-4.   p.    245. 

§  1916.  ANNUAL  RATE.  When  a  rate  of  interest  is  pre- 
scribed by  a  law  or  contract,  without  specifying  the  period 
of  time  by  which  such  rate  is  to  be  calculated,  it  is  to  be 
deemed  an   annual  rate. 

History:     Enacted  March   21,   1872. 


§  1917.  LEGAL  INTEREST.  Unless  there  is  an  express 
contract  in  writing,  fixing  a  dififerent  rate,  interest  is  payable 
on  all  monei'S  at  the  rate  of  seven  per  centum  per  annum 
after  they  become  due,  on  any  instrument  of  writing,  ex- 
cept a  judgment,  and  on  moneys  lent,  or  due  on  any  settle- 
ment of  account,  from  the  day  on  which  the  balance  is  as- 
certained, and  on  moneys  received  to  the  use  of  another  and 
detained  from  him.  In  the  computation  of  interest  for  a 
period  less  than  a  year,  three  hundred  and  sixty  days  are 
deemed  to  constitute  a  year. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  245;  February  5,  1878,  Code  Amdts.  1877-S, 
p.    87. 

§  1918.     SAME.     [BY      AGREEMENT,      ANY      RATE.] 

Parties  may  agree  in  writing  for  the  payment  of  anj-  rate  of 

686 


Tit.IV,ch.TII.]       INTEREST— ON   JUDGMENT.  §§1919,1920 

interest,   and   it  shall   be   allowed,   according  to  the   terms   of 
the  agreement,   until   the   entry   of  judgment. 

HLstory:     Enacted  March   21,   1S72. 

§  1919.  INTEREST  BECOMES  PART  OF  PRINCI- 
PAL,  WHEN.  The  parties  may,  in  any  contract  in  writing 
whereby  any  debt  is  secured  to  be  paid,  agree  that  if  the 
interest  on  such  debt  is  not  punctually  paid,  it  shall  become 
a  part  of  the  principal,  and  thereafter  bear  the  Same  rate  of 
interest  as  the  principal  debt. 

History:     Enacted  March   21,   1872. 

§1920.  INTEREST  ON  JUDGMENT.  Interest  is  pay- 
able on  judgments  recovered  in  the  courts  of  this  state,  at 
the  rate  of  seven  per  cent  per  annum,  and  no  greater  rate, 
but  such  interest  must  not  be  compounded  in  any  manner  or 
form. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code   Anidts.    1873-4,  p.    245. 


687 


§§1925-1927  CIVIL  CODE.  [Div.III,Pt.IV. 


TITLE  V. 

HIRING 

Chapter  1.     Hiring    in    General,    §§  1925-1935. 

II.     Hiring  of   Real   Property,   §§1941-1950. 
III.     Hiring   of   Personal    Property,   §§1955-1959. 


CHAPTER  I. 
hiriStg  in  general. 

§  1925.  Hiring,  wliat. 

§  1926.  Products    of   thing. 

§  1927.  Quiet  possession. 

§  1928.  Degree  of  care,   etc.,  on  part  of  hirer. 

S  1929.  Must  repair  injuries,   etc. 

§  1930.  Tiling  let  for  a  particular  purpose. 

S  1931.  When   letter   may   terminate    the   hiring. 

§  1932.  When  liirer  may  terminate  the  hiring. 

§  1933.  When    hiring    terminates. 

§  1934.  AVlien   terminated  by  death,   etc.,   of  party. 

§  193.5.  Apportionment  of  hire. 

§  1925.  HIRING,  WHAT.  Hiring  is  a  contract  by  which 
one  gives  to  another  the  temporary  possession  and  use  of 
property,  other  than  money,  for  reward,  and  the  latter  agrees 
to  return  the  same  to  the  former  at  a  future  time. 

History:     Enacted  March  21,  1S72. 

§  1926.  PRODUCTS  OF  THING.  The  products  of  a 
thing  hired,  during  the  hiring,  belong  to  the  hirer. 

History:      Enacted  March   21,   1872. 

§  1927.  QUIET  POSSESSION.  An  agreement  to  let  up- 
on hire  binds  the  letter  to  secure  to  the  hirer  the  quiet  pos- 

688 


Tit.V.ch.I.]  CARE— REPAIRING    INJURIES.  §§  1928-1931 

session  of  the  thing  hired  during  the  term  of  the  hiring, 
against    all    persons    lawfully    claiming    the    same. 

History:      Enacted  March   21,   1872. 

§  1928.  DEGREE  OF  CARE,  ETC.,  ON  PART  OF 
HIRER.  The  hirer  of  a  thing  must  use  ordinary  care  for  its 
preservation   in   safety  and  in  good  condition. 

History:     Enacted  March  21,   1872. 

§  1929.  MUST  REPAIR  INJURIES,  ETC.  The  hirer 
of  a  thing  must  repair  all  deteriorations  or  injuries  thereto 
occasioned  by  his  want  of  ordinary  care. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  412,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March    21.    1905,   Stat.s.   and   .\nidt.s.    1905,   p.    m. 

S  1930.  THING  LET  FOR  A  PARTICULAR  PUR- 
POSE. When  a  thing  is  let  fur  a  particular  purpose  the 
hirer  nuist  not  use  it  for  any  other  purpose;  and  if  he  does, 
he  is  liable  to  the  letter  for  all  damages  resulting  from  such 
use,  or  the  letter  maj'  treat  the  contract  as  thereby  rescinded. 

Hi.story:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, .Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  412,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
Maicli   21,   1905,  Stats,  and  Amdts.   1905,  p.   614. 

§  1931.     WHEN    LETTER     MAY     TERMINATE   THE 

HIRING.  The  letter  of  a  thing  may  terminate  the  hiring 
and  reclaim  the  thing  before  the  end  of  the  term  agreed 
upon: 

1.  When  the  hirer  uses  or  permits  a  use  of  the  thing 
hired  in  a  manner  contrary  to  the  agreement  of  the  parties; 
or, 

2.  When  the  hirer  does  not,  within  a  reasonable  time  after 
request,   make   such  repairs  as  he  is  bound  to  make. 

History:     Enacted  March  21,  1872. 

689 


§§1932-1935  CIVIL  CODE.  [Div.III^Pt.IV. 

§  1932.  WHEN  HIRER  MAY  TERMINATE  THE  HIR- 
ING. The  hirer  of  a  thing  may  terminate  the  hiring  before 
the  end  of  the  term  agreed  upon: 

1.  When  the  letter  does  not,  within  a  reasonable  time  after 
request,  fulfil  his  obligations,  if  any,  as  to  placing  and  se- 
curing the  hirer  in  the  quiet  possession  of  the  thing  hired, 
or  putting  it  into  good  condition,  or  repairing;  or, 

2.  When  the  greater  part  of  the  thing  hired,  or  that  part 
which  was  and  which  the  letter  had  at  the  time  of  the  hir- 
ing reason  to  believe  was  the  material  inducement  to  the 
hirer  to  enter  into  the  contract,  perishes  from  any  other 
cause  than  the  want  of  ordinary  care  of  the  hirer. 

History:  Enacted  March  21,  1S72;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  412,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,   190.T,   Stat-^.  and  Amdts.   190.5,  p.   614. 

§  1933.  WHEN  HIRING  TERMINATES.  The  hiring  of 
a  thing  terminates: 

1.  At  the  end  of  the  term  agreed  upon; 

2.  By  the  mutual  consent  of  the  parties; 

3.  By  the  hirer  acquiring  a  title  to  the  thing  hired  superior 
to   that   of   the   letter;    or, 

4.  By  the  destruction  of  the  thing  hired. 

History:      Enacted  March  21,   1^72. 

§  1934.     WHEN  TERMINATED  BY  DEATH,  ETC.,  OF 

PARTY.  If  the  hiring  of  a  thing  is  terminable  at  the  pleas- 
ure of  one  of  the  parties,  it  is  terminated  by  notice  to  the 
other  of  his  death  or  incapacity  to  contract.  In  other  cases 
it   is   not  terminated   thereby. 

History:     Enacted  March   21,   1872. 

§  1935.  APPORTIONMENT  OF  HIRE.  When  the  hir- 
ing of  a  thing  is  terminated  before  the  time  originally 
agreed  upon,  the  hirer  must  pay  the  due  proportion  of  the 
hire  for  such  use  as  he  has  actually  made  of  the  thing,  un- 
less such  use  is  merely  nominal,  and  of  no  benefit  to  him. 
History:  Enacted  March  21,  1872. 
690 


Tit.V,ch.II.]  RIGHTS  OF  LESSOR,   ETC.  §§  1941,  1942 


CHAPTER  II. 

HIRING    OF    REAL    PROPERTY. 

§  1941.  Lessor  to  make  dwelling-house  fit  for  its  purpose. 

§  194  2.  Lessee    may    make    repairs,    etc. 

§  1943.  Term   of   hiring   when   no   limit   is    fixed. 

§  1944.  Hiring   of    lodgings    for   indefinite    term. 

§  1945.  Renewal  of  lease  by  lessee's  continued  possession. 

§  1946.  Notice   to   quit. 

§  1947.  Rent,  when  payable. 

§  1948.  Attornment  of  a  tenant  to  a  stranger. 

§  1949.  Tenant  must   deliver   notice   served  on   him. 

§  1950.  Letting  parts  of  rooms  forbidden. 

§  1941.  LESSOR  TO  MAKE  DWELLING-HOUSE  FIT 
FOR  ITS  PURPOSE.  The  lessor  of  a  building  intended 
for  the  occupation  of  human  beings  must,  in  the  absence  of 
an  agreement  to  the  contrary,  put  it  into  a  condition  fit  for 
such  occupation,  and  repair  all  subsequent  dilapidations 
thereof,  which  render  it  untenantable,  except  such  as  are 
mentioned   in    section   nineteen   hundred   and   twenty-nine. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  245,  246,  by  inserting  the  words  "in  ab- 
sence of  any  agreement  to  the  contrary." — ^Van  Every  vs.  Ogg, 
59   Cal.   563,   566. 

§1942.     LESSEE      MAY     MAKE     REPAIRS,   ETC.     If 

within  a  reasonable  time  after  notice  to  the  lessor,  of  dilap- 
idations which  he  ought  to  repair,  he  neglects  to  do  so,  the 
lessee  may  repair  the  same  himself,  where  the  cost  of  such 
repairs  do  not  require  an  expenditure  greater  than  one 
month's  rent  of  the  premises,  and  deduct  the  expenses  of 
such  repairs  from  the  rent,  or  the  lessee  may  vacate  the 
premises,  in  which  case  he  shall  be  discharged  from  further 
payment  of  rent,  or  performance  of  other  conditions. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code  Amdts.   1873-4,  p.  246. 

691 


!:;§  104.1-1945  r'TVTT.  roDTC.  |  Div.llT.m.l  \'. 

This  section  as  originally  enacted  provided  that  lessee  miglit 
make  repairs  himself  "and  deduct  the  expense  of  such  repairs 
from  the  rent,  or  otherwise  recover  it  from  the  lessor/'  with- 
out providing,  as  it  was  made  to  read  by  amendment  in  1874, 
tliat  "where  the  costs  of  such  repairs  do  not  require  an  ex- 
penditure greater  than  one  month's  rent  of  the  premises,"  etc., 
to  the  end  of  the  section  as  it  now  reads. — Van  Every  vs.  Ogg, 
59  Cal.  563,  566. 


§  1943.  TERM  OF  HIRING  WHEN  NO  LIMIT  IS 
FIXED.  .\  hiring  of  real  property,  other  than  lodgings  and 
dwelling-houses,  in  places  where  there  is  no  usage  on  the 
subject,  is  presumed  to  be  for  one  year  from  its  commence- 
ment, unless  otherwise  expressed  in  the  hiring. 

Histor.v:     Enacted  March   21,   1S72. 


§  1944.  HIRING  OF  LODGINGS  FOR  INDEFINITE 
TERM.  A  hiring  of  lodgings  or  a  dwelling-house  for  an 
unspecified  term  is  presumed  to  have  been  made  for  such 
length  of  time  as  the  parties  adopt  for  the  estimation  of  the 
rent.  Thus  a  hiring  at  a  monthly  rate  of  rent  is  presumed 
to  be  for  one  month.  In  the  absence  of  any  agreement  respect- 
ing the  length  of  time  or  the  rent,  the  hiring  is  presumed  to 
be  monthly. 

Hi.storj-:     Enacted  March   21,   1872. 


§  1945.  RENEWAL  OF  LEASE  BY  LESSEE'S  CON- 
TINUED POSSESSION.  If  a  lessee  of  real  property  re- 
mains in  possession  thereof  after  the  expiration  of  the  hir- 
ing, and  the  lessor  accepts  rent  from  him,  the  parties  are 
presumed  to  have  renewed  the  hiring  on  the  same  terms  and 
for  the  same  time,  not  exceeding  one  month  when  the  rent 
is  payable  monthly,  nor  in  any  case  one  year. 

History:  Enacted  March  21,  1872,  founded  upon  §  6  Act  1863. 
— Stoppelkamp  vs.  Mangeot,  42  Cal.  316,  323. 

692 


Tit. V. ell. 1 1. 1  XOTTCF,  TO  QUIT— RENT.  §§1046-1949 

§  1946.  NOTICE  TO  QUIT.  A  hiring  of  real  property, 
for  a  term  not  specified  by  the  parties,  is  deemed  to  be  re- 
newed as  stated  in  the  last  section,  at  the  end  of  the  term 
implied  by  law,  unless  one  of  the  parties  gives  notice  to  the 
other  of  his  intention  to  terminate  the  same,  at  least  as  long 
before  the  expiration  thereof  as  the  term  of  the  hiring  it- 
self, not  exceeding  one  month. 

History:     Enacted  March   21,   1872. 


§  1947.  RENT,  WHEN  PAYABLE.  When  there  is  no 
usage  or  contract  to  the  contrary,  rents  are  payable  at  the 
termination  of  the  holding,  when  it  does  not  exceed  one  year. 
If  the  holding  is  by  the  day.  week,  month,  quarter,  or  year, 
rent  is  payable  at  the  termination  of  the  respective  periods, 
as  it  successively  becomes  due. 

History:      Enacted  March   21,   1872. 


§  1948.  ATTORNMENT  OF  A  TENANT  TO  A  STRAN- 
GER. The  attornment  of  a  tenant  to  a  stranger  is  void, 
unless  it  is  made  with  the  consent  of  the  landlord,  or  in  con- 
sequence of  a  judgment  of  a  court  of  competent  jurisdiction. 

History:  Enacted  March  21,  1872;  founded  upon  Stats.  1855, 
p.    171,    §  7. 

§  1949.  TENANT  MUST  DELIVER  NOTICE  SERVED 
ON  HIM.  Every  tenant  who  receives  notice  of  any  pro- 
ceeding to  recover  the  real  property  occupied  by  him,  or  the 
possession  thereof,  must  immediately  inform  his  landlord 
of  the  same,  and  also  deliver  to  the  landlord  the  notice,  if  in 
writing,  and  is  responsible  to  the  landlord  for  all  damages 
which  he  may  sustain  by  reason  of  any  omission  to  inform 
him  of  the  notice,  or  to  deliver  it  to  him  [if]   in  writing. 

History:  Enacted  March  21,  1872;  amended  March  :?0.  1874. 
Code  Amdt.s.   1873-4,  p.   246. 

693 


§  1950  CIVIL    CODE.  [Div.III.Pt.IV. 

§  1950.     LETTING  PARTS  OF  ROOMS  FORBIDDEN. 

One  who  hires  part  of  a  room  for  a  dwelling  is  entitled  to 
the  whole  of  the  room,  notwithstanding  any  agreement  to 
the  contrary;  and  if  a  landlord  lets  a  room  as  a  dwelling 
for  more  than  one  family,  the  person  to  whom  he  first  lets 
any  part  of  it  is  entitled  to  the  possession  of  the  whole  room 
for  the  term  agreed  upon,  and  every  tenant  in  the  building, 
under  the  same  landlord,  is  relieved  from  all  obligation  to 
pay  rent  to  him  while  such  double  letting  of  any  room  con- 
tinues. 

History:      Enacted  March   21,   1S72. 


fi94 


Tit.V,ch.III.]  HIRING  PERSONALTY.  §§1955-1957 


CHAPTER  III. 

HIRING  OF  PERSONAL  PROPERTY. 

§  1955.  Oljligations   of  letter  of  personal  property. 

§  1956.  Ordinary  expenses. 

§  1957.  Extraordinary    expenses. 

§  195S.  Return  of  thing  hired. 

§  1959.  Charter  party,  what. 


§  1955.  OBLIGATIONS  OF  LETTER  OF  PERSONAL 
PROPERTY.  One  who  lets  personal  property  must  deliv- 
er it  to  the  hirer,  secure  his  quiet  enjoyment  thereof  against 
all  lawful  claimants,  put  it  into  a  condition  fit  for  the  pur- 
pose for  which  he  lets  it,  and  repair  all  deteriorations  thereof 
not  occasioned  by  the  fault  of  the  hirer  and  not  the  natural 
result  of  its  use. 

History:      Enacted  March   21,   1S72. 


§  1956.  ORDINARY  EXPENSES.  A  hirer  of  personal 
property  must  bear  all  such  expenses  concerning  it  as  might 
naturally  be  foreseen  to  attend  it  during  its  use  by  him.  .All 
other  expenses  must  be  borne  by  the  letter. 

History:      Enacted  March   21,   1872. 


§  1957.  EXTRAORDINARY  EXPENSES.  If  a  letter 
fails  to  fulfil  his  obligations,  as  prescribed  by  section  nine- 
teen hundred  and  fifty-five,  the  hirer,  after  giving  him  notice 
to-do  so,  if  such  notice  can  conveniently  be  given,  ma}-  ex- 
pend any  reasonable  amount  necessary  to  make  good  the  let- 
ter's default,  and  may  recover  such  amount  from  him. 

History:      Enacted  March   21,   1872. 

695 


§§1958,1959  CIVIL  CODE.  [Div.III,Pt.l V. 

§  1958.  RETURN  OF  THING  HIRED.  At  the  expira- 
tion of  the  term  for  which  personal  property  is  hired,  the 
hirer  must  return  it  to  the  letter  at  the  place  contemplated 
by  the  parties  at  the  time  of  hiring;  or,  if  no  particular  place 
was  so  contemplated  by  them,  at  the  place  at  which  it  was 
at   that   time. 

History:      Knacted  March   21,   1S72. 

§  1959.  CHARTER  PARTY,  WHAT.  The  contract  by 
which  a  ship  is  let  is  termed  a  charter  party.  By  it  the  own- 
er may  either  let  the  capacity  or  burden  of  the  ship,  con- 
tinuing the  employment  of  the  owner's  master,  crew,  ana 
equipments,  or  may  surrender  the  entire  ship  to  the  char- 
terer, who  then  provides  them  himself.  The  master  or  a 
part  owner  may  be  a  charterer. 

History:     Enacted  March  21,   1872. 


696 


Tit.VI.ch.I.art.I.]     SERVICE   AND    EMPLOYMENT.  §1965 


TITLE  \  1. 

SERVICE. 

Chapter  I.     Service  With  Employment,  §§  1965-2003. 
II.     Particular    Employments,   §§2009-2072. 
III.     Service    Without    Employment,    §§2078.   2079. 


CHAPTER  I. 

SERVICE  WITH  EMPLOYMENT. 

Article   I.  Definition    of    Employment,    §  1965. 

II.  Obligations  of  the  Employer.  §§  1969-1971. 

III.  Obligations  of  the  Employee,  §§  1975-1992. 

1\'.  Termination  of  Employment,  §§  1996-2003. 


ARTICLE  I. 
DEFINITION   OP    EMPLOYMENT. 

§  1965.      Employment,    wliat. 

§  1965.  EMPLOYMENT,  WHAT.  The  contract  of  em- 
ployment is  a  contract  by  which  one,  who  is  called  the  em- 
ployer, engages  another,  who  is  called  the  employee,  to  do 
something  for  the  benefit  of  the  employer,  or  of  a  third  per- 
son. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  1 G,  1901,  Stats,  and  Amdts.  1900-1,  p.  412,  lield 
unconstitutional,  see  Jiistory,   §  4   ante. 

697 


§§1969,1970  CIVIL  CODE.  [Div.III,Pt.IV. 


ARTICLE  II. 

OBLIGATIONS    OF    THE    EMPLOYER. 

§  1969.     When    employei-    must    indemnify    employee. 

§  1970.     Wlien    not    [bound   to  indemnify    employee]. 

§  1971.      Employer   to   indemnify   for    his   own   negligence. 

§  1969.  WHEN  EMPLOYER  MUST  INDEMNIFY  EM- 
PLOYEE. An  employer  must  indemnify  his  employee,  ex- 
cept as  prescribed  in  the  next  section,  for  all  that  he  neces- 
sarily expends  or  loses  in  direct  consequence  of  the  discharge 
of  his  duties  as  such,  or  of  his  obedience  to  the  directions  of 
the  employer,  even  though  unlawful,  unless  the  employee,  at 
the  time  of  obeying  such  directions,  believed  them  to  be  un- 
lawful. 

History:     Enacted  March   21,   1872. 

§  1970.  WHEN  NOT  [BOUND  TO  INDEMNIFY  EM- 
PLOYEE.] An  emploj'er  is  not  bound  to  indemnify  his 
employee  for  losses  suffered  by  the  latter  in  consequence  of 
the  ordinary  risks  of  the  business  in  which  he  is  employed, 
nor  in  consequence  of  the  negligence  of  another  person  em- 
ployed by  the  same  employer  in  the  same  general  business, 
unless  the  negligence  causing  the  injury  was  committed  in 
the  performance  of  a  duty  the  emploj^er  owes  by  law  to  the 
employee,  or  unless  the  employer  has  neglected  to  use  ordin- 
ary care  in  the  selection  of  the  culpable  employee;  provided, 
nevertheless,  that  the  employer  shall  be  liable  for  such  in- 
jury when  the  same  results  from  the  wrongful  act,  neglect 
or  default  of  any  agent  or  ofificer  of  such  employer,  superior 
to  the  employee  injured,  or  of  a  person  employed  by  such 
employer  having  the  right  to  control  or  direct  the  services  of 
such  employee  injured,  and  also  when  such  injury  results 
from   the  wrongful  act,  neglect  or  default  of  a  co-employee 

698 


Tit. VI, ch. I, art. II.]       INDEMNIFYING   EMPLOYEE.  §  1970 

engaged  in  another  department  of  labor  from  that  of  the  em- 
ployee injured,  or  employed  upon  a  machine,  railroad  train, 
switch  signal  point,  locomotive  engine,  or  other  appliance 
than  that  upon  which  the  employee  is  injured  is  employed, 
or  who  is  charged  with  dispatching  trains,  or  transinitting 
telegraphic  or  telephonic  orders  upon  any  railroad,  or  in  the 
operation  of  any  mine,  factory,  machine  shop,  or  other  in- 
dustrial establishment. 

Knowledge  by  an  employee  injured  of  the  defective  or  un- 
safe character  or  condition  of  any  machinery,  ways,  appli- 
ances or  structures  of  such  employer  shall  not  be  a  bar  to  re- 
covery for  any  injury  or  death  caused  thereby,  unless  it  shall 
also  appear  that  such  employee  fully  understood,  compre- 
hended and  appreciated  the  dangers  incident  to  the  use  of 
such  defective  machinery,  ways,  appliances  or  structure,  and 
thereafter  consented  to  use  the  same,  or  continued  in  the  use 
thereof. 

[Right  of  action  for  death  of  employee.]  When  death, 
whether  instantaneous  or  otherwise,  results  from  an  injury  to 
an  employee  received  as  aforesaid,  the  personal  representative 
of  such  employee  shall  have  a  right  of  action  therefor  against 
such  employer,  and  may  recover  damages  in  respect  thereof, 
for  and  on  behalf,  and  for  the  benefit  of  the  widow,  children, 
dependent  parents,  and  dependent  brothers  and  sisters,  in 
order  of  precedence  as  herein  stated,  but  no  more  than  one 
action  shall  be  brought  for  such  recovery. 

[Benefits  of  this  section  may  not  be  waived.]  Any  con- 
tract or  agreement,  express  or  implied,  made  by  any  such 
employee  to  waive  the  benefits  of  this  section,  or  any  part 
thereof,  shall  be  null  and  void,  and  this  section  shall  not  be 
construed  to  deprive  any  such  employee  or  his  personal  repre- 
sentative, of  any  right  or  remedy  to  which  he  is  now  entitled 
under  the   laws  of  this   state. 

[Contributory  negligence.]  The  rules  and  principles  of 
law  as  to  contributory  negligence  which  apply  to  other  cases 

699 


§  1971  CIVIL  CODE.  [Div.III.Pt.lV. 

shall  apply  to  cases  arising  under  this   section,  except   in   so 
far  as  the  same  are  herein  modified  or  changed. 

History-:  Enacted  March  21,  1872;  amended  March  20,  1903, 
Stats,  and  Amdts.  1903,  p.  256;  amended  March  6,  1907,  Stats, 
and  Amdts.  1907,  p.  119,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  426. 
Ill  effect  from  and  after  passage. 

§  1971.  EMPLOYER  TO  INDEMNIFY  FOR  HIS  OWN 
NEGLIGENCE.  An  employer  must  in  all  cases  indemnify 
his  employee  for  losses  caused  by  the  former's  want  of  ordi- 
nary care. 

History:     Enacted  March   21,   1872. 


700 


Tit.VI,ch.I,art.IlI.]     employee.  DUTY.  §§1975,1976 


ARTICLE  III.  t 

OBLIGATIONS   OF   THE    EMPLOY'EE. 

§  1975.  Duties  of  gratuitous  employee. 

§  1976.  Same.      [By   special    request.] 

§  1977.  Same.      [Under    written    power    of    attorney.] 

§  1978.  Duties  of  employee  for  reward. 

§  1979.  Duties   of  employee  for  his   own  benefit. 

§  1980.  Contracts   for  service   limited  to   two  years. 

§  1981.  Employee  must  obey  employer. 

§  1982.  Employee  to  conform  to  usage. 

§  1983.  Degree   of  skill   required. 

§  1984.  Must  use  what  skill  he  has. 

§  1985.  What   belongs  to   employer. 

§  1986.  Duty  to  account. 

§  1987.  Employee  not  bound  to  deliver  without  demand. 

§  1988.  Preference  to  be  given  to  employers. 

§  1989.  Responsibility   of   employee   for  substitute. 

§  1990.  Responsibility    for   negligence. 

§  1991.  Surviving  emploj'ee. 

§  1992.  Confidential   employment. 

§  1975.     DUTIES  OF  GRATUITOUS  EMPLOYEE.     One 

who,  without  consideration,  undertakes  to  do  a  service  for 
another,  is  not  bound  to  perform  the  same,  but  if  he  actually 
enters  upon  its  performance,  he  must  use  at  least  slight  care 
and  diligence  therein. 

Hl.s<ory:      F.nacted   Marcli    21,   1S72. 

§1976.  SAME.  [BY  SPECIAL  REQUEST.]  Ouv  whn. 
by  his  own  special  request,  induces  another  to  intrust  him 
with  the  performance  of  a  service,  must  ])erf<)rm  the  same 
fully.  In  other  cases,  one  who  undertakes  a  gratuitous  serv- 
ice  may   relin(|uish  it   at  any  time. 

History:      Enacted  March   21,   1872. 

701 


§§  1977-1981  CIVIL  CODE.  [Div.III,Pt.IV. 

§  1977.  SAME.  [UNDER  WRITTEN  POWER  OF  AT- 
TORNEY.] A  gratuitous  employee,  who  accepts  a  written 
power  of  attorney,  must  act  under  it  so  long  as  it  remains  in 
force,  or  until  he  gives  notice  to  his  employer  that  he  will 
not  do  so. 

History:      Enacted  March   21,   1S72. 

§  1978.     DUTIES  OF  EMPLOYEE  FOR  REWARD.    One 

who,  for  a  good  consideration,  agrees  to  serve  another,  must 
perform  the  service,  and  must  use  ordinary  care  and  diligence 
therein,  so  long  as  he  is  thus  employed. 

Hi-story:      Enacted  March   21,   1872. 

§  1979.  DUTIES  OF  EMPLOYEE  FOR  HIS  OWN  BEN- 
EFIT. One  who  is  employed  at  his  own  request  to  do  that 
which  is  more  for  his  own  advantage  than  for  that  of  his  em- 
ployer, must  use  great  care  and  diligence  therein  to  protect 
the  interest  of  the  latter. 

History:      Enacted  March   21,   1872. 

§  1980.  CONTRACTS  FOR  SERVICE  LIMITED  TO 
TWO  YEARS.  A  contract  to  render  personal  service,  other 
than  a  contract  of  apprenticeship,  as  provided  in  the  chapter 
on  master  and  servant,  cannot  be  enforced  against  the  em- 
ployee beyond  the  term  of  two  years  from  the  commence- 
ment of  service  under  it;  but  if  the  employee  voluntarily  con- 
tinues his  service  under  it  beyond  that  time,  the  contract 
may  be  referred  to  as  affording  a  presumptive  measure  of  the 
compensation. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  413, 
held  unconstitutional,   see   history,   §  4   ante. 

§  1981.     EMPLOYEE   MUST    OBEY   EMPLOYER.      An 

employee   mu^t   substantially   comply   with   all   the   directions 

702 


Tit.VI,ch.I,art.III.]USAGE— DEGREE  OF  SKILL.  §§1982-1985 

of  his  employer  concerning  the  service  on  which  he  is  en- 
gaged, except  where  such  obedience  is  impossible  or  unlawful, 
or  would  impose  new  and  unreasonable  burdens  upon  the 
employee. 

Hi-story:      Enacted   March    21,    1872;    amended    Marcli    30,    1874, 
Code  Amdts.  1S73-4,  p.   246. 


§  1982.  EMPLOYEE  TO  CONFORM  TO  USAGE.  An 

employee  must  perform  his  service  in  conformity  to  the  usage 
of  the  place  of  performance,  unless  otherwise  directed  by 
his  employer,  or  unless  it  is  impracticable,  or  manifestly  in- 
jurious to  his  employer  to  do  so. 

History:     Enacted  March   21,   1872. 


§  1983.  DEGREE  OF  SKILL  REQUIRED.  An  employee 
is  bound  to  exercise  a  reasonable  degree  of  skill,  unless  his 
employer  has  notice,  before  employing  him,  of  his  want  of 
skill. 

History:     Enacted  March   21,  1872. 

§  1984.  MUST  USE  WHAT  SKILL  HE  HAS.  An  em- 
ployee is  always  bound  to  use  such  skill  as  he  possesses,  so 
far  as  the  same  is  required,  for  the  service  specified. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.   247. 

§  1985.  WHAT  BELONGS  TO  EMPLOYER.  Every- 
thing which  an  employee  acquires  by  virtue  of  his  employ- 
ment, except  the  compensation,  if  any,  which  is  due  to  him 
from  his  employer,  belongs  to  the  latter,  whether  acquired 
lawfully  or  unlawfully,  or  during  or  after  the  expiration  of 
the  term  of  his  employment. 

History:     Enacted  March   21,   1S72. 

703 


§§1986-1990  CTVTL  CODE.  [Div.lII,rt.IV. 

§  1986.  DUTY  TO  ACCOUNT.  An  employee  must,  on 
demand,  render  to  his  employer  just  accounts  of  all  his 
transactions  in  the  course  of  his  service,  as  often  as  may  be 
reasonable,  and  must,  without  demand,  give  prompt  notice  to 
his  employer  of  everything  which  he  receives  for  his  account. 

History:     Enacted  March   21,   1S72. 


§  1987.  EMPLOYEE  NOT  BOUND  TO  DELIVER 
WITHOUT  DEMAND.  An  employee  who  receives  any- 
thing on  account  of  his  employer,  in  any  capacity  other  than 
that  of  a  mere  servant,  is  not  bound  to  deliver  it  to  him  until 
demanded,  and  is  not  at  liberty  to  send  it  to  him  from  a  dis- 
tance, vi^ithout  demand,  in  any  mode  involving  greater  risk 
than  its  retention  by  the  employee  himself. 

History:      Enacted  March   21,   1872. 

§  1988.  PREFERENCE  TO  BE  GIVEN  TO  EMPLOY- 
ERS. An  employee  who  has  any  business  to  transact  on  his 
own  account,  similar  to  that  intrusted  to  him  by  his  employer, 
must  always  give  the  latter  the  preference. 

History:  FJnacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.   1873-4,   p.   247. 

§  1989.  RESPONSIBILITY  OF  EMPLOYEE  FOR 
SUBSTITUTE.  An  employe  who  is  expressly  authorized  to 
employ  a  substitute  is  liable  to  his  principal  only  for  want 
of  ordinary  care  in  his  selection.  The  substitute  is  directly 
responsible  to  the  principal. 

Hi.story:     Enacted  March   21,   1872. 


§  1990.  RESPONSIBILITY  FOR  NEGLIGENCE.  An 
employee  who  is  guilty  of  a  culpable  degree  of  negligence  is 
liable  to  his  employer  for  the  damage  thereby  caused  to  the 

704 


Tit.VI,ch.I,art.III.i      SUUVtVING   EMPLOYEE.  §§1991,1992 

latter;  and  the  employer  is  liable  to  him,  if  the  service  is  not 
t,'ratuitous,  for  the  value  of  such  services  only  as  are  properly 
rendered. 

History;  Enacted  Marrli  I'l,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  413, 
held  unconstitutional,   see   history,    §  4   ante. 

§1991.  SURVIVING  EMPLOYEE.  Where  service  is  to 
be  rendered  b}^  two  or  more  persons  jointly,  and  one  of  them 
dies,  the  survivor  must  act  alone,  if  the  service  to  be  rendered 
is  such  as  he  can  rightly  perform  without  the  aid  of  the  de- 
ceased person,  but  not  otherwise. 

History:     I5nacted  March   21,   1872. 

§1992.  CONFIDENTIAL  EMPLOYMENT.  The  obliga- 
tions peculiar  to  confidential  employments  are  defined  in  the 
title  on  trusts. 

History:     Enacted  March   21,   1872. 


70S 


§§1906-1998  CTVTT.  CODE.  [Div.lTI.Pt.TV. 


ARTICLE  IV. 

TERMINATION    OF    EMPLOYMENT. 

■5  1996.  Termination  by  death,  etc.,  of  employer. 

§  1997.  Employment,   how  terminated. 

§  1998.  Continuance   of  service   in   certain   cases. 

§  1999.  Termination  at  will. 

§  2000.  Termination  by  employer  for  fault. 

§  2001.  Termination  by  employee  for  fault. 

§  2002.  Compensation  of  employee  dismissed  for  cause. 

§  2003.  Compensation   of   employee  leaving-  for  cause. 

§  1996.  TERMINATION  BY  DEATH,  ETC.,  OF  EM- 
PLOYER. Every  employment  in  which  the  power  of  the  em- 
ployee is  not  coupled  with  an  interest  in  its  subject  is  ter- 
minated by  notice  to  him  of: 

1.  The  death  of  the  employer;  or, 

2.  His  legal  incapacity  to   contract. 

History:  Enacted  March  21,  1S72;  amended  by  Code  Com- 
mission, Act  March  16,  1901.  Stats,  and  Amdts.  1900-1,  p.  413. 
held   unconstitutional,   see  history,    §  4  ante. 

§  1997.  EMPLOYMENT,  HOW  TERMINATED.  Every 
employment  is  terminated: 

1.  By  the  expiration  of  its  appointed  term; 

2.  By  the  extinction  of  its  subject; 

3.  By  the  death  of  the  employee;  or, 

4.  By  his  legal  incapacity  to  act  as  such. 

History:     Enacted  March   21,   1872. 

§1998.  CONTINUANCE  OF  SERVICE  IN  CERTAIN 
CASES.  An  employee,  unless  the  term  of  his  service  has  ex- 
pired, or  unless  he  has  a  right  to  discontinue  it  at  any  time 
without  notice,  must  continue  his  service  after  notice  of  the 

706 


Tit.VI,ch.I,art.IV.]         TERMINATION.  §§  1999-2001 

death  or  incapacity  of  his  employer,  so  far  as  is  necessary  to 
protect  from  serious  injury  the  interests  of  the  employer's 
successor  in  interest,  until  a  reasonable  time  after  notice 
of  the  facts  has  been  communicated  to  such  successor.  The 
successor  must  compensate  the  employee  for  such  service  ac- 
cording to  the  terms  of  the   contract  of  employment. 

History:     Enacted  March   21,   1ST2. 

§  1999.  TERMINATION  AT  WILL.  An  employment, 
liaving  no  specified  term,  may  be  terminated  at  the  will  of 
either  party,  on  notice  to  the  other.  Employment  for  a  speci- 
fied term  shall  mean  an  employment  for  a  period  greater  than 
one  month. 

History:  Enacted  March  21,  1S72;  amended  May  21,  1915, 
Stats,  and  Amdts.   1915,  p.   720.      lu  effeet  August   8,   1915. 

§  2000.    TERMINATION  BY  EMPLOYER  FOR  FAULT. 

An  employment,  for  a  specified  term,  may  be  terminated  at 
any  time  by  the  employer,  in  case  of  any  wilful  breach  of 
duty  by  the  employee  in  the  course  of  his  employment,  or 
in  case  of  his  habitual  neglect  of  his  duty  or  continued  in- 
capacity to  perform  it. 

Histor>-:  Enacted  March  21,  1872;  amended  May  21,  1915, 
Stats,  and  Amdts.  1915,  p.   720.     In  effect  August  8,  1915. 


§  2001.    TERMINATION  BY  EMPLOYEE  FOR  FAULT. 

An  employment,  for  a  specified  term,  may  be  terminated  by 
the  employee  at  any  time,  in  case  of  any  wilful  or  permanent 
breach  of  the  ')l)ligations  of  liis  employer  lo  him  ris  v.n  em- 
ployee. 

HIstorj':       Enacted    March     21,     1872;    aniended    May    21,     191."i, 
Stats,  and  Amdts.   1915,  p.   720.      In  effect  August   8,  1915. 

707 


§§2002,2003  CIVIL  code.  [Div.III.Pt.IV. 

§2002.  COMPENSATION  OF  EMPLOYEE  DIS- 
MISSED FOR  CAUSE.  An  employee  who  is  not  employed 
for  a  specified  term,  dismissed  by  his  employer,  is  entitled  to 
compensation  for  services  rendered  up  to  the  time  of  such 
dismissal. 

History:  Enacted  March  21,  1872;  amended  May  21,  1915, 
Stats,  and  Amdts.   1915,  p.   720.      In  effect  August   8,  1915. 

§2003.  COMPENSATION  OF  EMPLOYEE  LEAVING 
FOR  CAUSE.  An  employee  who  is  not  employed  for  a  spe- 
cified term  and  who  quits  the  service  of  his  employer,  is  en- 
titled to  compensation  for  services  rendered  up  to  the  time  of 
such  quitting. 

Hi.story:  Enacted  March  21,  1872;  amended  May  21,  1915, 
Stats,  and  Amdts.   1915,  p.   720.      In  effect  August   S,   1915. 


"08 


Tit.VI,ch.lI,art.I.]      MASTER  and  SERVANT.  §§2009,2010 


CHAPTER  II. 

PARTICULAR    EMPLOYMENT. 

.\rticle   I.  Alaster    and    Servant.    §§2009-2015. 

II.  Agents,  §§2019-2022. 

III.  Factors,  §§2026-2030. 

IV.  Shipmasters,  §§2034-2044.     - 

\'.     Mates   and   Seamen.   §§2048-2066. 
VI.     Ship's   managers.   §§2070-2072. 


ARTICLE   I. 

MASTER   AND    SERVANT. 

§  2009.  Servant,  what. 

§  2010.  Term  of  hiring. 

§  2011.  Same.      [Presumed  to  be  montlily,  when.] 

§  2012.  Renewal    of   hiring. 

§  2013.  Time   of   service. 

§  2014.  Servant  to  pay  over  without  demand. 

§  201.5.  When  servant   may  be  di.scharged. 

§  2009.  SERVANT,  WHAT.  A  servant  is  one  who  is  em- 
ployed to  render  personal  service  to  his  employer,  other- 
wise than  in  the  pursuit  of  an  independent  calling,  and  who  in 
such  service  remains  entirely  under  the  contrcd  and  direc- 
tion of  the  latter,  who  is  called  his  master. 

Ilixtory:      Enarted    Marcli    21.    ls72. 

§2010.  TERM  OF  HIRING.  A  servant  is  presumed  to 
liave  been  hired  for  such  length  of  time  as  the  parties  adopt 
for   the    estimation   of   wages.     A    hiring   at   a   yearly   rate   is 

709 


§§2011-2014  CIVIL  CODE.  [Div.IIl.Pt.IV. 

presumed  to  be  for  one  year;  a  hiring  at  a  daily  rate,  for  one 
day;  a  hiring  by  piecework,  for  no  specified  term. 

History:      Enacted  March   21,  1872. 


§2011.  SAME.  [PRESUMED  TO  BE  MONTHLY, 
WHEN.]  In  the  absence  of  any  agreement  or  custom  as  to 
the  term  of  service,  the  time  of  payment,  or  rate  or  value  of 
wages,  a  servant  is  presumed  to  be  hired  by  the  month,  at 
a  monthly  rate  of  reasonable  wages,  to  be  paid  when  the 
service  is  performed. 

History:      Enacted  March   21,  1872. 

§2012.  RENEWAL  OF  HIRING.  Where,  after  the  ex- 
piration of  an  agreement  respectmg  the  wages  and  the  term 
of  service,  the  parties  continue  the  relation  of  master  and 
servant,  they  are  presumed  to  have  renewed  the  agreement 
for  the  same  wages  and  term  of  service. 

History:      Enacted  March   21,  1872. 


§2013.  TIME  OF  SERVICE.  The  entire  time  of  a  do- 
mestic servant  belongs  to  the  master;  and  the  time  of  other 
servants  to  such  extent  as  is  usual  in  the  business  in  which 
i.hey  serve,  not  exceeding   in  any  case  ten  hours  in   the  day. 

History:      Enacted  Marcli   21,  1S72. 

§2014.  SERVANT  TO  PAY  OVER  WITHOUT  DE- 
MAND. A  servant  must  deliver  to  his  master,  as  soon  as 
with  reasonable  diligence  he  can  find  him,  everything  that 
he  receives  for  liis  account,  without  demand;  but  he  is  not 
bound,  without  orders  from  his  master,  to  send  anything  to 
Mm  through  another  person. 

History:      Enacted  March   21,  1872. 
710 


Tit.VI,ch.n,art.T.l      DISCHARGE   OF   SERVANT.  §2015 

§2015.     WHEN    SERVANT    MAY    BE    DISCHARGED. 

A  master  may  discharge  any  servant,  otlier  than  an   appren- 
tice whether  engaged  for  a  fixed  term  or  not: 

1.  If  he  is  guilty  of  misconduct  in  the  course  of  his  service, 
or  of  gross  immorality,  though  unconnected  with  the  same; 
or, 

2.  If,  being  employed  about  the  person  of  the  master,  or 
m  a  confidenLial  position,  the  master  discovers  that  he  has 
been  guilty  of  misconduct,  before  or  after  the  commence- 
ment of  his  service,  of  such  a  nature  that,  if  the  master  had 
known  or  contemplated  it,  he  would  not  have  so  employed 
him. 

History:      Enacted  March   21,  1872. 


711 


§§2019-2022  civil,  CODE.  |  Div.l  I  I,Pt.I\' 


ARTICLE  II. 

AGENTS. 

§  2019.  Agent   to   conform   to   his   authority. 

§  2020.  Must    keep   his   principal   informed. 

§  2021.  Collecting  agent. 

§  2022.  Responsibility  of  sub-agent. 

§  2019.     AGENT  TO  CONFORM  TO  HIS  AUTHORITY. 

An  agent  must  not  exceed  the  limits  of  his  actual  authority, 
as  defined  by  the   title  on  agency. 

History:     Enacted  March   21,   1S72. 

§2020.     MUST    KEEP    HIS    PRINCIPAL    INFORMED. 

An  agent  must   use   ordinary   diligence   to   keep  his  principal 
informed  of  his  acts  in  the  course  of  the  agency. 

History:      Enacted  March   21,  1872. 

§2021.  COLLECTING  AGENT.  An  agent  employed  to 
collect  a  negotiable  instrument  must  collect  it  promptly,  and 
take  all  measures  necessary  to  charge  the  parties  thereto,  in 
case  of  its  dishonor;  and,  if  it  is  a  bill  of  exchange,  must  pre- 
sent it  for  acceptance  with  reasonable  diligence. 

Hi.story:     Enacted  March   21,  1872. 

§2022.  RESPONSIBILITY  OF  SUB-AGENT.  A  mere 
agent  of  an  agent  is  not  responsible  as  such  to  the  princi- 
pal of  the  latter. 

Hi.«jtory:     Enacted  March   21,  1872. 


712 


Tit.Vl.ch.II.art.llI.]     FACTORS— OBEDlExNCE.        §§2026-2028 


ARTICLE  III. 

FACTORS. 

S  202H.  Factor,  what. 

§  2027.  Obedience   required   from   factor. 

§  202S.  Sales  on   credit. 

§2029.  Liability   of   factor    under   guaranty    commi.ssion. 

§  2030.  Factor   cannot   relieve   himself   from  liability. 


§  2026.  FACTOR,  WHAT.  A  factor  is  an  agent  who,  m 
the  pursuit  of  an  independent  calling,  is  employed  by  an- 
other to  sell  property  for  him,  and  is  vested  by  the  latter  with 
the  possession  or  control  of  the  property,  or  authorized  to 
receive  payment  therefor  from  the  purchaser. 

History:      Enacted  March   21,  1872. 

§  2027.     OBEDIENCE  REQUIRED  FROM  FACTOR.    A 

factor  must  obey  the  instructions  of  his  principal  to  the 
same  extent  as  any  other  employee,  notwithstanding  any  ad- 
vances he  may  have  made  to  his  principal  upon  the  property 
consigned  to  him,  except  that  if  the  principal  forbids  him  to 
sell  at  the  market  price,  he  may,  nevertheless,  sell  for  his 
reimbursement,  after  giving  to  his  principal  reasonable  no- 
tice of  his  intention  to  do  so,  and  of  the  time  and  place  of 
sale,  and  proceeding  in  all  respects  as  a  pledgee. 

History;      Enacted   March   21,  1S;72. 


§2028.  SALES  ON  CREDIT.  A  factor  may  sell  prop- 
erty consigned  to  him  on  such  credit  as  is  usual;  but,  having 
once  agreed  with  the  purchaser  upon  the  term  of  credit,  may 
not   extend  it. 

History:      Enacted  Marcli   21,   1S72. 

713 


§§2029,2030  CIVIL  code.  [Div.III.Pt.l  V. 

§2029.  LIABILITY  OF  FACTOR  UNDER  GUARAN- 
TY COMMISSION.  A  factor  who  charges  his  principal 
with  a  guaranty  commission  upon  a  sale,  thereby  assumes 
absolutely  to  pay  the  price  when  it  falls  due,  as  if  it  were 
a  debt  of  his  own,  and  not  as  a  mere  guarantor  for  the  pur- 
chaser; but  he  does  not  thereby  assume  any  additional  re- 
sponsibility for  the  safety  of  his  remittance  of  the  proceeds. 

History:     Enacted  March   21,   1S72. 

§2030.  FACTOR  CANNOT  RELIEVE  HIMSELF 
FROM  LIABILITY.  A  factor  who  receives  property  for 
sale,  under  a  general  agreement  or  usage  to  guarantee  the 
sales  or  the  remittance  of  the  proceeds,  cannot  relieve  him- 
self from  responsibility  therefor  without  the  consent  of  his 
principal. 

Histoi-}-:     Enacted  March  2l,  1872. 


714 


Tit.VT,ch.TT,art.T  V-l    STTTPMASTERS— PTT.otagk.  §§  2034-2037 


ARTICLE  IV. 

SHIPMASTERS. 

§  2034.  Appointment    of    master. 

§  203.5.  When   must   be   on   board. 

§  2036.  Pilotage. 

§  2037.  Power  of  master  over  seamen. 

§  2038.  Power   of   master   over   passengers. 

§  2039.  Impressing  private  stores. 

§  2040.  Wiien    may    abandon    the    ship. 

§  2041.  Duties   on    abandonment. 

§  2042.  When  master  cannot   trade  on   his   own   account. 

§  2043.  Care   and   diligence. 

§  2044.  Authority    of   master. 


§  2034.  APPOINTMENT  OF  MASTER.  The  master  of 
a  ship  is  appointed  by  the  owner,  and  holds  during  his  pleas- 
ure. 

HLstory:     Enacted  March   21,   1872. 

§2035.  WHEN  MUST  BE  ON  BOARD.  The  master  of 
a  ship  is  bound  to  be  always  on  board  when  entering  or 
leaving  a  port,  harbor,  or  river. 

Hlslory:  Enacted  Marcli  21,  1872,  foundc^d  upon  Code  de 
Com.   art.   227. 

§  2036.  PILOTAGE.  On  entering  or  leaving  a  port,  har- 
bor, or  river,  the  master  of  a  ship  must  take  a  pilot  if  one 
offers  himself,  and  while  the  pilot  is  on  board  the  navigation 
of  the  ship  devolves  on  him. 

History:     Enacted  March   21.   1872. 

§2037.     POWER  OF   MASTER   OVER  SEAMEN.     The 

master  of  a  sliip  may  enforce  the  obedience  of  the  mate  and 

715 


§§2038-2042  (^IVIT.  code.  f Div.l  1  IJ't.l V. 

seamen  to  his  lawful  commands  by  confinement  and  other 
reasonable  corporal  punishment,  not  prohibited  by  acts  of 
Congress,  being  responsible  for  the  abuse  of  his  power. 

History:      Enacted  March   21,   1S72. 

§2038.     POWER    OF    MASTER    OVER    PASSENGERS. 

The  master  of  a  ship  may  confine  any  person  on  board,  dur- 
ing a  voyage,  for  wilful  disobedience  to  his  lawful  commands. 

History:      Enacted  March   21,   1872. 

§2039.  IMPRESSING  PRIVATE  STORES.  If,  during 
a  voyage,  the  ship's  supplies  fail,  the  master,  with  the  advice 
of  the  officers,  may  compel  persons  who  have  private  sup- 
plies on  board  to  surrender  them  for  the  common  want,  on 
payment  of  their  value,   or   giving   security   therefor. 

History:  Enacted  March  21,  1872,  founded  upon  \Code  de 
Com.  art.    219.  \ 

§2040.     WHEN    MAY    ABANDON      THE      SHIP.     Tht 

master  of  a  ship  must  not  abandon  it  during  the  voyage, 
without  the  advice  of  the  other  officers. 

History:      Enacted  March   21,   1872. 


§2041.  DUTIES  ON  ABANDONMENT.  The  master  of 
a  ship,  upon  abandoning  it,  must  carry  with  him,  so  far  as  it 
is  in  his  power,  the  money  and  the  most  valuable  of  the 
goods  on  board,  under  penalty  of  being  personally  responsi- 
ble. If  the  articles  thus  taken  are  lost  from  causes  beyond 
liis  control,  he  is  exonerated  from  liability. 

History:  Enacted  March  21,  1872,  founded  upon  Code  de 
Com.   art.   211. 

§2042.  WHEN  MASTER  CANNOT  TRADE  ON  HIS 
OWN  ACCOUNT.     The  master  of  a  ship,  who  engages  for 

716 


Tit.VI,ch.II,art.l\'.l       1  >ri.rCxKNCE—AUTHOniTY.§§  2043.  2044 

a  common  profit  on  the  cargo,  must  not  trade  on  his  own 
account,  and  if  he  does,  he  must  account  to  his  employer  for 
all  profits  thus  made   by  him. 

History:  Enacted  Mareh  21,  1872,  see  Code  de  Com.  arts.  2.39, 
240. 

§  2043.  CARE  AND  DILIGENCE.  The  master  of  a  ship 
must  use  great  care  and  diligence  in  the  performance  of  his 
duties,  and  is  responsible  for  all  damage  occasioned  by  his 
negligence,   however   slight. 

Hi.«*tory:     Enacted  March   21,   1ST2. 

§2044.  AUTHORITY  OF  MASTER.  The  authority  and 
liability  of  the  master  of  a  ship,  as  an  agent  for  the  owners 
of  the  ship  and  cargo,  are  regulated  by  the  title  on  agency. 

History:     Enacted  March  21,   1872. 


717 


§§2048-2050  (MVIT.  CODE.  |  Div.Il  I.Pl.l  V. 


ARTICLE  V. 

MATES  AND   SEAMEN. 

§  204S.  Mate,  what. 

§  2049.  Seamen,    what. 

§  2050.  Mate    and    seamen,    how    engaged    and    di.scharg-ed. 

§  2051.  Unseaworthy  vessel. 

§  2052.  Seamen  not  to  lose  wages  or  lien  by  agreement. 

§  2053.  Special  agreement  with  seamen. 

§  2054.  Wages   depend   on   freightage. 

§  2055.  When  wages,  etc.,  begin. 

§  2056.  Wages,  where  voyage  is  broken   up  before  departure. 

§  2057.  Wrongful  discharge. 

§  2058.  Wages,  when   not  lost  by  wreck. 

§  2059.  Certificate. 

§  2060.  Disabled  seamen. 

§  2061.  Maintenance  of  seamen  during  .sickness. 

§  2062.  Death   on   the  voyage. 

§  2063.  Theft,   etc.,   forfeits   wages. 

§  2064.  Seamen  cannot  ship   goods. 

§  2065.  Embezzlement    and    injuries    [repealed]. 

§  2066.  Law    governing   seamen.  ^ 

§2048.  MATE,  WHAT.  The  mate  of  a  ship  is  the  of- 
ficer next  in  rank  to  the  master,  and  in  case  of  the  master's 
disability  he  must  take  his  place.  By  so  doing  he  does  not 
lose   an}'   of   his   rights   as   mate. 

History:     Enacted  March  21,   1872. 

§2049.  SEAMEN,  WHAT.  All  persons  employed  in  the 
navigation  of  a  ship,  or  upon  a  voyage,  other  than  the  mas- 
ter and  mate,  are  to  be  deemed  seamen  within  the  provisions 
of   this   code. 

History:     Enacted  March   21,   1872. 

§  2050.  MATE  AND  SEAMEN,  HOW  ENGAGED  AND 
DISCHARGED.     The   mate   and   seamen   of  a  ship  are   en- 

718 


Tit.VJ,ch.II,art.V.]      SEAMExX— AGREEMENT.  §§  2051-2054 

gaged  by  the  master,  and  may  be  discharged  by  him  at  any 
period  of  the  voyage,  for  wilful  and  persistent  disobedience 
or  gross  disqualification,  but  cannot  otherwise  be  discharged 
before  the  termination  of  the  voyage. 

lii.stor.v:      Enacted  March   21,   1S72. 


§2051.  UNSEAWORTHY  VESSEL.  A  mate  or  seamen 
is  [are]  not  bound  to  go  to  sea  in  a  ship  that  is  not  sea- 
worthy; and  if  there  is  reasonable  doubt  of  its  seaworthiness, 
lie  may  refuse  to  proceed  until  a  proper  survey  has  been 
had. 

History:     Enacted  March   21,   1872. 

§2052.  SEAMEN  NOT  TO  LOSE  WAGES  OR  LIEN 
BY  AGREEMENT.  A  seaman  cannot,  by  reason  of  any 
agreement,  be  deprived  of  his  lien  upon  the  ship,  or  of  anyi 
remedy  for  the  recovery  of  his  wages  to  which  he  would 
otherwise  have  been  entitled.  Any  stipulation  by  which  he 
consents  to  abandon  his  right  to  wages  in  case  of  the  loss 
of  the  ship,  or  to  abandon  any  right  he  may  have  or  obtain 
in  the  nature  of  salvage,  is  void. 

Histor.v:     Enacted  March   21,   1872. 

§2053.     SPECIAL     AGREEMENT     WITH      SEAMEN. 

No  special  agreement  entered  into  by  a  seaman  can  impair 
any  of  his  rights,  or  add  to  any  of  his  obligations,  as  defined 
by  law,  unless  he  fully  understands  the  effect  of  the  agree- 
ment, and  receives  a  fair  compensation  therefor. 

Ilislor.v:      Enacted  March   21,   1872. 

§2054.  WAGES  DEPEND  ON  FREIGHTAGE.  Ex- 
cept as  hereinafter  provided,  the  wages  of  seamen  are  due 
when,  and  so  far  only  as,  freightage  is  earned,  unless  the  loss 
of  freightage  is  owing  to  the  fault  of  the  owner  or  master. 

Hl.stor.y:     Enacted  March   21,   1872. 

719 


§§2055-2059  civil  code.  [Div.III.Pt.I V. 

§2055.  WHEN  WAGES,  ETC.,  BEGIN.  The  right  of  a 
mate  or  seaman  to  wages  and  provisions  begins  either  from 
the  time  he  begins  work,  or  from  the  time  specified  in  the 
agreement  for  his  beginning  work,  or  from  his  presence  on 
board,  whichever  first  happens. 

History:  Enacted  March  21,  1872,  founded  upon  13  and  U 
Vic.    c.    93,    §  56. 


§2056.  WAGES,  WHERE  VOYAGE  IS  BROKEN  UP 
BEFORE  DEPARTURE.  Where  a  voyage  is  broken  up 
before  departure  of  the  ship,  the  seamen  must  be  paid  for  the 
time  they  have  served,  and  may  retain  for  their  indemnity 
such  advances  as  they  have  received. 

History:  Enacted  March  21,  1872,  modified  from  Code  de 
Com.  art.   252. 


§2057.  WRONGFUL  DISCHARGE.  When  a  mate  or 
seaman  is  wrongfully  discharged,  or  is  driven  to  leave  the 
ship  by  the  cruelty  of  the  master  on  the  voyage,  it  is  then 
ended  with  respect  to  him.  and  he  may  thereupon  recover 
his  full  wages. 

History:     Enacted  March   21,   1872. 


§2058.     WAGES,  WHEN  NOT  LOST  BY  WRECK.     In 

case  of  loss  or  wreck  of  the  ship,  a  seaman  is  entitled  to  his 
wages  up  to  the  time  of  the  loss  or  wreck,  whether  freight- 
age has  been  earned  or  not,  if  he  exerts  himself  to  the  ut- 
most to  save  the   ship,  cargo,  and  stores. 

History:       Enacted     March     21,     1.S72.     substantially     samo     as 
Stats.   7  and   S  Vic,  c.   112,   §  17. 

§2059.     CERTIFICATE.     A    certificate    from    the    master 
or  chief  surviving  officer  of  a   ship,  to  the  effect  that  a  sea- 

720 


Tit.Vl,ch.II,art.\".|  disabled  seamen.  §§2060-2063 

man  exerted  himself   to   the   utmost   to   save   the   sliip,   cargo, 
and  stores,  is  presumptive  evidence  of  the  fact. 

History:     Enacted  March   21,   1872. 


S  2060.  DISABLED  SEAMEN.  Where  a  mate  or  seaman 
is  prevented  from  rendering  service  by  illness  or  injury,  in- 
curred without  his  fault  in  the  discharge  of  his  duty  on  the 
voyage,  or  by  being  wrongfully  discharged,  or  by  a  capture 
of  the  ship,  he  is  entitled  to  wages  notwithstanding;  I)ut  in 
case  of  a  capture,  a  ratable  deduction  for  salvage  is  to  be 
made. 

History:     Enacted  March   21,   1872. 

§2061.  MAINTENANCE  OF  SEAMEN  DURING 
SICKNESS.  If  a  mate  or  seaman  becomes  sick  or  disabled 
during  the  voyage,  without  his  fault,  the  expense  of  furnish- 
ing him  with  suitable  medical  advice,  medicine,  attendance, 
and  other  provision  for  his  wants,  must  be  borne  by  the  ship 
till  the  close  of  the  voyage. 

Hist«>ry:     Enacted  March   21,   1S72. 

§2062.  DEATH  ON  THE  VOYAGE.  If  a  mate  or  sea- 
man dies  during  the  voyage,  his  personal  representatives  arc 
entitled  to  his  wages  to  the  time  of  his  death,  if  he  would 
have  been  entitled  to  them  had  he  lived  to  the  end  of  the 
voyage. 

History:     Enacted  March   21,   1872. 

§2063.  THEFT,  ETC.,  FORFEITS  WAGES.  Desertion 
of  the  ship  without  cause,  or  a  justifiable  discharge  by  the 
master  during  the  voyage,  for  misconduct,  or  a  theft  of  any 
part  of  the  cargo  or  appurtenances  of  the  ship,  or  a  wilful 
injury  thereto  or  to  the  ship,  forfeits  all  wages  due  for  the 
voyage  to  a  inate  or  seaman  thus  in  fault. 

HLstory;     Enacted  March    21,   1872. 

721 


§§2064-2066  civil  code.  [Div.III,Pt.lV. 

§2064.  SEAMEN  CANNOT  SHIP  GOODS.  A  mate  or 
seaman  may  not,  under  any  pretext,  ship  goods  on  his  own 
account   without   permission    from    the   master. 

History:  Enacted  Mai'ch  21,  1872,  founded  upon  Code  de 
Com.  art.   2.'il. 

§2065.     EMBEZZLEMENT  AND   INJURIES   [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  .30.  1S74, 
Code    Amdts.    1873-4,    p.    247. 

§2066.  LAW  GOVERNING  SEAMEN.  The  shipment 
of  officers  and  seamen,  and  their  rights  and  duties,  are  fur- 
ther regulated  by  acts  of  Congress. 

History:      Enacted  March   21,   1872. 


722 


Til.VI,cli.n,art.VI.]    MANAGER— DUTIES  OF.         §§2070-2072 


ARTICLE  VI. 

SHIP'S  MANAGERS. 

§  2070.     Manager,   what. 

§  2071.      Duties  of  manager. 

§  2072.      Compen.sation. 

§2070.  MANAGER,  WHAT.  The  general  agent  for  the 
owners,  in  respect  to  the  care  of  a  ship  and  freight,  is  called 
the  manager.  If  he  is  a  part  owner,  he  is  also  called  the 
managing  owner. 

History:     Enacted  March  21,   1872. 

§2071.  DUTIES  OF  MANAGER.  Unless  otherwise  di- 
rected, it  is  the  duty  of  the  manager  of  a  ship  to  provide  for 
the  complete  seaworthiness  of  a  ship;  to  take  care  of  it  in 
port;  to  see  that  it  is  provided  with  necessary  papers,  with  a 
proper  master,  mate,  and  crew,  and  supplies  of  provisions 
and    stores. 

History:     Enacted  March   21,   1872. 

§2072.  COMPENSATION.  A  managing  owner  is  pre- 
sumed to  have  no  right  to  compensation  for  his  own  services. 

History:     Enacted  March   21,   1872. 


723 


§S  2078. 2079  crvii.  code.  [Div.III.Pt.IV. 


CHAPTER  III. 

SERVICE  WITHOUT  EMPLOYMENT. 

§  207S.     Voluntary   interference  with  property. 
§  J(i79.     Salvage. 

§  2078.  VOLUNTARY  INTERFERENCE  WITH  PROP- 
ERTY. One  who  officiously,  and  without  the  consent  of 
the  real  or  apparent  owner  of  a  thing,  takes  it  into  his  pos- 
session for  the  purpose  of  rendering  a  service  about  it,  must 
complete  such  service,  and  use  ordinary  care,  diligence,  and 
reasonable  skill  about  the  same.  He  is  not  entitled  to  any 
compensation  for  his  service  or  expenses,  except  that  he 
may  deduct  actual  and  necessary  expenses  incurred  by  him 
about  such  service  from  any  profits  which  his  service  has 
caused  the  thing  to  acquire  for  its  owner,  and  must  account 
to  the  owner  for  the  residue. 

History:      Enacted  March   21,   1S72. 

§  2079.  SALVAGE.  Any  person,  other  than  the  master, 
mate,  or  a  seaman  thereof,  who  rescues  a  ship,  her  appur- 
tenances or  cargo,  from  danger,  is  entitled  to  a  reasonable 
compensation  therefor,  to  be  paid  out  of  the  property  saved. 
He  has  a  lien  for  such  claim,  which  is  regulated  by  the  title 
on  liens;  but  no  claim  for  salvage,  as  such,  can  accrue  against 
any  vessel,  or  her  freight,  or  cargo,  in  favgr  of  the  owners, 
officers,  or  crew  of  another  vessel  belonging  to  the  same 
owners;  but  the  actual  cost[s]  at  the  time  of  the  services 
rendered  by  one  such  vessel  to  another,  when  in  distress, 
are  payable  through  a  general  average  contribution  on  the 
property  saved. 

History:  Enacted  March  21^  1872;  amended  March  30,  1874, 
Code  Amdts.  1S73-4,  p.  247;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  413,  held  unconsti- 
tutional,  see  history,   §  4   ante. 

724 


TitA'I  l.ch.l.  I  CARRTAGE— OARRIEUS.  §§  2085,  2086 


TITLE  VII. 

CARRIAGE. 

Chapter  I.  Carriage   in   General,   §§2085-2090. 

II.  Carriage  of  Persons,  §§,  2096-2104. 

III.  Carriage   of  Property,  §§2110-2155. 

IV.  Carriage   of  Messages,   §§  2161-2162. 
\'.  Common   Carriers,  §§  2168-2209. 


CHAPTER  I. 

CARRIAGE    IN   GENERAL. 

§  2085.  Contract  of  carriage. 

§  2086.  Different  kinds  of  carriers. 

§  2087.  Marine    and   inland   carriers,    what. 

§  2088.  Carriers  by  sea. 

§  20S9.  Obligations   of   gratuitous   carriers. 

§  2090.  Obligations    of    gratuitous    carrier    who    has    begun    to 
carry. 

§2085.  CONTRACT  OF  CARRIAGE.  The  contract  of 
carriage  is  a  contract  for  the  conveyance  of  property,  per- 
sons,  or  messages,   from  one   place   to   another. 

History:      Enacted  March    21,   1ST2. 

§2086.     DIFFERENT  KINDS  OF  CARRIERS.     Carriage 

is  either: 

1.   Inland;   or, 


2.   Marine. 


Hi.<<t<ir.v:      Enacted  Marcli   21,    1ST2. 
725 


§§2087-2090  Civil,  codk.  [Div.TFT.Pt.IV. 

§2087.     MARINE   AND    INLAND    CARRIERS,   WHAT. 

Carriers  upon  the  ocean  and  upon  arms  of  the  sea  are. marine 
carriers.     All  others  are  inland  carriers. 

History:      Enacted  March   21,   1872. 

§  2088.  CARRIERS  BY  SEA.  Rights  and  duties  peculiar 
to  carriers  by  sea  are  defined  by  acts  of  Congress. 

Hi.st«ry:      Enacted  March   21,   1872. 

§2089.  OBLIGATIONS  OF  GRATUITOUS  CAR- 
RIERS. Carriers  without  reward  are  subject  to  the  same 
rules  as  employees  without  reward,  except  so  far  as  is  other- 
wise provided  by  this  title. 

History:      Enacted  March   21,   1872. 

§2090.  OBLIGATIONS  OF  GRATUITOUS  CARRIER 
WHO  HAS  BEGUN  TO  CARRY.  A  carrier  without  re- 
ward, who  has  begun  to  perform  his  undertaking,  must  com- 
plete it  in  like  manner  as  if  he  had  received  a  reward,  unless 
he  restores  the  person  or  thing  carried  to  as  favorable  a  po- 
sition as  before  he  commenced  the  carriage. 

History:     Enacted  March   21,   1872. 


726 


Tit.VIl,ch.II,arts.l,n.J      CARRIAGE,  rkward.      §§2096,2100 


CHAPTER  II. 
CARRIAGE  OF  PERSONS. 


Article    I.     (iratuitous  Carriage,  §2096. 

II.     Carriage  for  Reward,  §§2100-2104. 


ARTICLE  I. 

GRATUITOUS    CARRIAGE    OF    PERSONS. 

§  2096.     Degree   of  care   required. 

§2096.  DEGREE  OF  CARE  REQUIRED.  A  carrier  of 
persons  without  reward  must  use  ordinary  care  and  diligence 
for  their  safe  carriage. 

History:      Enacted  March   21,   1S72. 


ARTICLE  II. 

CARRIAGE    FOR    REWARD. 

§2100.  General   duties  of  carrier. 

§  2101.  Vehicles. 

§  2102.  Not  to  overload  his  vehicle. 

§  2103.  Treatment  of  passengers. 

§  2104.  Rate  of  speed  and  delays. 

§2100.  GENERAL  DUTIES  OF  CARRIER.  A  carrier 
of  persons  for  reward  must  use  the  utmost  care  and  diligence 
for  their  safe  carriage,  must  i)rovide  everything  necessary 
ff)r  that  purpose,  and  must  exercise  to  that  end  a  reasonable 
degree   of  skill. 

History:     Enacted  March   21,   1S72. 

727 


§§2101-2104  CIVIL    CODE.  [Div.lll.l't.lV. 

§2101.  VEHICLES.  A  carrier  of  persons  for  reward  is 
bound  to  provide  vehicles  safe  and  fit  for  the  purposes  to 
which  they  are  put,  and  is  not  excused  for  default  in  this  re- 
spect by  any  degree  of  care. 

History:     Enacted  March   21,   1872. 

§  2102.  NOT  TO  OVERLOAD  HIS  VEHICLE.  A  car- 
rier of  persons  for  reward  must  not  overcrowd  or  overload 
his  vehicle. 

Hi-story:      Enacted  March   21,   1872. 

§2103.  TREATMENT  OF  PASSENGERS.  A  carrier  of 
persons  for  reward  must  give  to  passengers  all  such  accom- 
modations as  are  usual  and  reasonable,  and  must  treat  them 
with  civility,  and  give  them  a  reasonable  degree  of  attention. 

History:     Enacted  March   21,   1872. 

§2104.  RATE  OF  SPEED  AND  DELAYS.  A  carrier  of 
persons  for  reward  must  travel  at  a  reasonable  rate  of  speed, 
and  without  any  unreasonable  delay,  or  deviation  from  his 
proper  route. 

History:     Enacted  March   21,   1872. 


728 


Tit.VIl.ch.nr.artS.lJI.I    DEFINITTONS— OBLIGATIONS.  §2110 


CHAPTER  111. 

CARRIAGE  OF  PROPERTY. 

Article   I.  General  Definitions,  §2110. 

II.  Obligations  of  the   Carrier.  §§2114-2122. 

III.  Bill  of  Lading.  §§2126-2132. 

IV.  Freightage,    §§2136-2144. 

V.     General  Average.  §§2148-2155. 


ARTICLE  I. 

GENERAL   DEFINITIONS. 

§  2110.      Freight,    consignor,    etc.,    what. 

§2110.  FREIGHT,  CONSIGNOR,  ETC.,  WHAT.  Prop- 
erty carried  is  called  freight;  the  reward,  if  any,  to  be  paid 
for  its  carriage  is  called  freightage;  the  person  who  delivers 
the  freight  to  the  carrier  is  called  the  consignor;  and  the 
person  to  whom  it  is  to  be  delivered  is  called  the  consignee. 

History;     Enacted  March   21,   1872. 


ARTICLE  II. 

OBLIGATIONS  OF  THE  CARRIER. 

§2114.  Care   and   diligence    required   of   carrier.^. 

§  2115.  Carrier   to   obey   direction.^. 

§  2116.  Conflict  of  orders. 

§  2117.  Stowage,    deviation,    etc. 

§  21  IS.  Delivery   of   freight. 

§  2119.  Place   of   delivery. 

729 


§§2114-2117  t^iviL  CODE.  [Div.TlI.Pt.IV. 

§  2120.     Notice   when   freight    not   delivered. 

§  2121.     When   consignee   does   not  accept. 

S  2122.      When    consignee    cannot    he    found    [repealed]. 


§2114.  CARE  AND  DILIGENCE  REQUIRED  OF 
CARRIERS.  A  carrier  of  property  for  reward  must  use  at 
least  ordinary  care  and  diligence  in  the  performance  of  all 
his  duties.  A  carrier  without  reward  must  use  at  least  slight 
care   and    diligence. 

Hi.story:      Enacted  March   21,   1872. 


§2115.  CARRIER  TO  OBEY  DIRECTIONS.  A  car- 
rier must  comply  with  the  directions  of  the  consignor  or 
consignee  to  the  same  extent  that  an  employee  is  bound  to 
comply  with  those  of  his  employer. 

History:      Enacted  March  21,   1872. 


§2116.  CONFLICT  OF  ORDERS.  When  the  directions 
of  a  consignor  and  consignee  are  conflicting,  the  carrier 
must  comply  with  those  of  the  consignor  in  respect  to  all 
matters  except  the  delivery  of  the  freight,  as  to  which  he 
must  comply  with  the  directions  of  the  consignee,  unless  the 
consignor  has  specially  forbidden  the  carrier  to  receive  or- 
ders from   the   consignee   inconsistent   with   his   own. 

Hi-story:      Enacted  March   21,   1872. 

§2117.  STOWAGE,  DEVIATION,  ETC.  A  marine  car- 
rier must  not  stow  freight  upon  deck  during  the  voyage,  ex- 
cept where  it  is  usual  to  do  so,  nor  make  any  improper  de- 
viation from  or  delay  in  the  voyage,  nor  do  any  other  un- 
necessary act  which  would  avoid  an  insurance  in  the  usual 
form  upon  the  freight. 

History:     Enacted  March  21,   1872. 

730 


Tit.VII,ch.III,art.II.]    delivery— PLACE  OF.      §§2118-2121 

§2118.  DELIVERY  OF  FREIGHT.  A  carrier  of  prop- 
erty must  deliver  it  to  the  consignee,  •at  the  place  to  which  it 
is  addressed,  in  the  manner  usual  at  that  place. 

History:     Enacted  March   21,   1872. 

§2119.  PLACE  OF  DELIVERY.  If  there  is  no  usage 
to  the  contrary  at  the  place  of  delivery,  freight  must  be  dc- 
Hvered  as  follows: 

1.  If  carried  upon  a  railway  owned  or  managed  by  tlie  car- 
rier, it  may  be  delivered  at  the  station  nearest  to  the  place  to 
which  it  is  addressed; 

2.  If  carried  by  sea  from  a  foreign  countr}',  it  may  be  de- 
livered at  the  wharf  where  the  ship  moors,  within  a  reason- 
able distance  from  the  place  of  address;  or,  if  there  is  no 
wharf,  on  board  a  lighter  alongside  the  ship;  or, 

3.  In  other  cases,  it  must  be  delivered  to  the  consignee  or 
liis  agent,  personally,  if  either  can,  with  reasonable  diligence, 
be  found. 

History:      Enacted  March   21,   1872. 

§2120.  NOTICE  WHEN  FREIGHT  NOT  DELIV- 
ERED. If,  for  any  reason,  a  carrier  does  not  deliver  freight 
to  the  consignee  or  his  agent  personally,  he  must  give  notice 
to  the  consignee  of  its  arrival,  and  keep  the  same  in  safety, 
upon  his  responsibility  as  a  warehouseman,  until  the  con- 
signee has  had  a  reasonable  time  to  remove  it.  If  the  place 
of  residence  or  business  of  the  consignee  be  unknown  to  the 
carrier,  he  may  give  the  notice  by  letter  dropped  in  the  near- 
est post-office.  ' 

History':  Enacted  March  21.  1S72;  amended  March  :iO.  1874, 
Code  Anidts.   1873-4,  p.   247. 

§2121.     WHEN    CONSIGNEE    DOES    NOT    ACCEPT. 

If  a  consignee   does  not  accept  and   remove   freight  within  a 
reasonable   time   after   the   carrier  has   fulfilled   his   obligation 

731 


§2122  t:iviL  CODE.  lDiv.III,Pt.IV. 

to  deliver,  or  duly  offered  to  fulfil  the  same,  the  carrier  may 
exonerate  himself  from  further  liability  by  placing  the  freight 
in  a  suitable  warehouse,  on  storage,  on  account  of  the  con- 
signee, and  giving  notice  thereof  to  him. 

History:      Enacted    March    21,    1872;    amended    March    30,    1874, 
Code  Amdts.   1S73-4,  p.  248. 

§2122.     WHEN    CONSIGNEE    CANNOT    BE    FOUND 

[repealed]. 

History:      Enacted    March    21.    1872;    repealed    March    30,    1874, 
Code  Amdts.   1873-4,  p.  248. 


lil 


Tit.VII,ch.III,art.III.]     bill  OF  lading.  §§2126-2128 


ARTICLE  III. 

BILL   OF   LADING. 

§  2126.      Bill   of  lading,  what. 

§  2127.     Bill  of  lading-  negotiable. 

§  2128.      Same.      [To   "bearer."] 

I  2129.     Effect   of  bill   of  lading   on    riglits,   etc.,   of   carrier. 

§  2130.     Bills  of  lading  to  be  given  to  consignor. 

§  2131.  Carrier  exonerated  by  delivery  according  to  bill  of  lad- 
ing. 

§  2132.  Carrier  may  demand  surrender  of  bill  of  lading  before 
delivery. 

§  2126.  BILL  OF  LADING,  WHAT.  A  bill  of  lading  is 
an  instrument  in  writing,  signed  by  a  carrier  or  his  agent, 
describing  the  freight  so  as  to  identify  it,  stating  the  name  of 
the  consignor,  the  terms  of  the  contract  for  carriage,  and 
agreeing  or  directing  that  the  freight  be  delivered  to  the 
order  or  assigns  of  a  specified  person  at  a  specified  place. 

History:      Enacted  March   21,   1872. 

§2127.     BILL     OF     LADING     NEGOTIABLE.     All     the 

title  to  the  freight  which  the  first  holder  of  a  bill  of  lading 
had  when  he  received  it,  passes  to  every  subsequent  in- 
dorsee thereof  in  good  faith  and  for  value,  in  the  ordinary 
course  of  business,  with  like  eflfect  and  in  like  manner  as  in 
the  case  of  a  bill  of  exchange. 

History:      Enacted  March    21,   1S72. 

§2128.  SAME.  [TO  "BEARER."]  When  a  bill  of  lad- 
ing is  made  to  "bearer."  or  in  equivalent  terms,  a  simple 
transfer  thereof,  by  delivery,  conveys  the  same  title  as  an 
indorsement. 

History:      Enacted  March   21,   1S72. 

733 


§§2129-2132  CIVIL  CODE.  [Div.lII.Pt.IV. 

§2129.  EFFECT  OF  BILL  OF  LADING  ON  RIGHTS, 
ETC.,  OF  CARRIER.  A  bill  of  lading  does  not  alter  the 
rights  or  obligations  of  the  carrier,  as  defined  in  this  chapter, 
unless  it  is  plainly  inconsistent  therewith. 

History:      Enacted  March   21,  1872. 

§2130.  BILLS  OF  LADING  TO  BE  GIVEN  TO  CON- 
SIGNOR. A  carrier  must  subscribe  and  deliver  to  the  con- 
signor, on  demand,  any  reasonable  number  of  bills  of  lading, 
of  the  same  tenor,  expressing  truly  the  original  contract  for 
carriage;  and  if  he  refuses  to  do  so,  the  consignor  may  take 
the  freight  from  him,  and  recover  from  him,  besides,  all  dam- 
age thereby  occasioned. 

History:      Enacted  March   21,   1872. 

§2131.  CARRIER  EXONERATED  BY  DELIVERY 
ACCORDING  TO  BILL  OF  LADING.  A  carrier  is  ex- 
onerated from  liability  for  freight  by  delivery  thereof,  in 
good  faith,  to  any  holder  of  a  bill  of  lading  therefor,  prop- 
erly indorsed,  or  made  in  favor  of  the  bearer. 

History:      Enacted  March   21,  1872. 

§2132.  CARRIER  MAY  DEMAND  SURRENDER  OF 
BILL  OF  LADING  BEFORE  DELIVERY.  When  a  car- 
rier has  given  a  bill  of  lading,  or  other  instrument  substan- 
tially equivalent  thereto,  he  may  require  its  surrender,  or  a 
reasonable  indemnity  against  claims  thereon,  before  deliver- 
ing the  freight. 

History:     Enacted  March  21,  1872. 


734 


Tit.VII,ch.lir,art.IV.l    FREIGHTAGE.  §§2136-2138 


ARTICLE  IV. 

,  FREIGHTAGE. 

§  2136.  When  freightage  is  to  be  paid. 

§  2137.  Consignor,   when  liable  for  freightage. 

§  2138.  Consignee,    when    liable. 

§  2139.  Natural  increase  of  freight. 

§  2140.  Apportionment   by    contract. 

§  2141.  Same.      [No   objection   on  partial  delivery.] 

§  2142.  Apportionment  according  to  distance. 

§  2143.  Freight   carried   further   than    agreed,   etc. 

§  2144.  Carrier's  lien  for  freightage   [and  for  services]. 

§2136.     WHEN    FREIGHTAGE    IS    TO    BE    PAID.     A 

carrier  may  require  his  freightage  to  be  paid  upon  his  re- 
ceiving the  freight;  but  if  he  does  not  demand  it  then,  he 
cannot  until  he  is  ready  to  deliver  the  freight  to  the  con- 
signee. 

History:      Enacted  March   21,   1872: 


§2137.  CONSIGNOR,  WHEN  LIABLE  FOR 
FREIGHTAGE.  The  consignor  of  freight  is  presumed  to 
be  liable  for  the  freightage,  but  if  the  contract  between  him 
and  the  carrier  provides  that  the  consignee  shall  pay  it,  and 
the  carrier  allows  the  consignee  to  take  the  freight,  he  can- 
not afterwards  recover  the  freightage  from  the  consignor. 

Historj-:     Enacted  March  21,  1872. 

§  2138.  CONSIGNEE,  WHEN  LIABLE.  The  consignee 
of  freight  is  liable  for  the  freightage,  if  he  accepts  the  freight 
with  notice  of  the  intention  of  the  consignor  that  he  should 
pay   it. 

Ht!<tor>':      Enacted   March   21,   1872. 

735 


§§2139-2143  CIVIL  CODK.  |Div.III,Pt.lV. 

§2139.     NATURAL     INCREASE      OF     FREIGHT.     No 

freightaKf  can  be  charge  upon  the  natural  increase  of  freight. 

History:      Knactcd   Marrli    :;  I ,    ISTi'. 

§2140.     APPORTIONMENT     BY      CONTRACT,     if 

freightage  is  apportioned  by  a  bill  of  lading  or  other  contract 
made  between  a  consignor  and  carrier,  the  carrier  is  entitled 
to  payment,  according  to  the  apportionment,  for  so  much  as 
he   delivers. 

History:      Knacted  March   21.   1872. 


§2141.  SAME.  [NO  OBJECTION  ON  PARTIAL  DE- 
LIVERY.] If  a  part  of  the  freight  is  accepted  by  a  con- 
signee, without  a  specific  objection  that  the  rest  is  not  de- 
livered, the  freightage  must  be  apportioned  and  paid  as  to 
that  part,  though  not  apportioned  in  the  original  contract. 

History:      Enacted  March   21,   1S72. 

§2142.  APPORTIONMENT  ACCORDING  TO  DIS- 
TANCE. If  a  consignee  voluntarily  receives  freight  at  a 
place  short  of  the  one  appointed  for  delivery,  the  carrier  is 
entitled  to  a  just  proportion  of  the  freightage,  according  to 
distance.  If  the  carrier,  being  ready  and  willing,  offers  to 
complete  the  transit,  he  is  entitled  to  the  full  freightage.  If 
he  does  not  thus  offer  completion,  and  the  consignee  re- 
ceives the  freight  only  from  necessit3%  the  carrier  is  not 
entitled  to  any  freightage. 

History:      Enacted  March   21.   1S72. 

§2143.  FREIGHT  CARRIED  FURTHER  THAN 
AGREED,  ETC.  If  freight  is  carried  further,  or  more  ex- 
peditiously, than  was  agreed  upon  by  the  parties,  the  carrier 
is   not   entitled    to    additional    compensation,   and    cannot    re- 


Tit.VII,ch.III,art.IV.l    I^IEN    FOR   FREIGHT.  §2144 

fuse    to    deliver   it,  on    tlie    demand   of    tlie    consignee,   at   the 
place  and  time  of  its  arrival. 

Hi.s<or.v:      Enacted  Mari'li   I'l,    ISTi'. 

§2144.  CARRIER'S  LIEN  FOR  FREIGHTAGE  [AND 
FOR  SERVICES].  A  carrier  has  a  lien  for  freightage  and 
for  services  rendered  at  request  of  shipper  or  consignee 
in  and  about  the  transportation,  care  and  preservation  of  tlie 
property,  and  he  also  has  a  lien  for  money  advanced  at  re- 
quest of  shipper  or  consignee  to  discharge  a  prior  lien.  His 
rights  to   such   lien  are  regulated   by   the   title   on  liens. 

Histoy:  Enacted  March  21.  1872;  amended  April  19,  1909, 
Stats,  and  Amdts.  1909,  p.  1000. 


737 


§§2148-2151  CIVIT.   CODE.  IDiv.lll.Pt.lV. 


ARTICLE  V. 

GENERAL  AVERAGE. 

§  214S.  Jettison    and    general    average^   what. 

§  2149.  Order  of  jettison. 

§  2150.  By  whom  made. 

§  2151.  Loss,    how    borne. 

§  2152.  General  average  loss,  how  art.iusted. 

§  215.3.  Values,   how  ascertained. 

§  2154.  Things  stowed  on  deck. 

§  2155.  Application  of  the   foregoing   rules. 

§2148.  JETTISON  AND  GENERAL  AVERAGE, 
WHAT.  A  carrier  by  water  may,  when  in  case  of  extreme 
peril  it  is  necessary  for  the  safety  of  the  ship  or  cargo,  throw 
overboard,  or  otherwise  sacrifice,  any  or  all  of  the  cargo  or 
appurtenances  of  the  ship.  Throwing  property  overboard  for 
such  purpose  is  called  jettison,  and  the  loss  incurred  thereby 
is  called  a  general  average  loss. 

History:     Enacted  March   21,  1872. 

§  2149.  ORDER  OF  JETTISON.  A  jettison  must  begin 
with  the  most  bulky  and  least  valuable  articles,  so  far  as 
possible. 

History:     Enacted  March   21,   1872.     See  Code  de  Com.  art.   411. 

§  2150.  BY  WHOM  MADE.  A  jettison  can  be  made  only 
by  authority  of  the  master  of  a  ship,  except  in  case  of  his 
(Usability,  or  of  an  overruling  necessity,  when  it  may  be  made 
l)y  any  other  person. 

History:     Enacted  March   21,   1872. 

§2151.  LOSS,  HOW  BORNE.  The  loss  incurred  by  a 
jettison,  when  lawfully  made,  must  be  borne  in  due  propor- 

738 


Tit.VII.ch.III.art.V.]    AVERAGE  LOSS.  §§2152-2155 

tion  by  all  that  part  of  the  ship,  appurtenances,  freightage, 
and  cargo  for  the  benefit  of  which  the  sacrifice  is  made,  as 
well  as  by  the  owner  of  the  thing  sacrificed. 

History:     Enacted  March   L'l,   1872. 

§2152.  GENERAL  AVERAGE  LOSS,  HOW  ADJUST- 
ED. The  proportions  in  which  a  general  average  loss  is  to 
be  borne  must  be  ascertained  by  an  adjustment,  in  which 
the  owner  of  each  separate  interest  is  to  be  charged  with 
such  proportion  of  the  value  of  the  thing  lost  as  the  value 
of  his  part  of  the  property  affected  bears  to  the  value  of  the 
whole.  But  an  adjustment  made  at  the  end  of  the  voyage, 
if  valid  there,  is  valid  everywhere. 

History:     Enacted  March   21,   1872. 

§2153.  VALUES,  HOW  ASCERTAINED.  In  estimat- 
ing values  for  the  purpose  of  a  general  average,  the  ship  and 
appurtenances  must  be  valued  as  at  the  end  of  the  voyage, 
the  freightage  at  one  half  the  amount  due  on  delivery,  and 
the  cargo  as  at  the  time  and  place  of  its  discharge;  adding, 
in   each   case,   the   amount  made   good   by  contribution. 

History:     Enacted  March   21,   1872. 

§2154.     THINGS   STOWED    ON   DECK.     The   owner   of 

things  stowed  on  deck,  in  case  of  their  jettison,  is  entitled 
to  the  benefit  of  a  general  average  contribution  only  in  case 
it  is  usual  to  stow  such  things  on  deck  upon  such  a  voyage. 

History:     Enacted  March   21,   1872. 

§2155.  APPLICATION  OF  THE  FOREGOING 
RULES.  The  rules  herein  stated  concerning  jettison  are 
equally  applicable  to  every  other  voluntary  sacrifice  of  prop- 
erty on  a  ship,  or  expense  necessarily  incurred,  for  the  preser- 
vation of  the  ship  and  cargo  from  extraordinary  perils. 

HI.Mlory:     Enacted  March   21.   1872. 
739 


§§2161,2162  CIVIL  CODE.  [Div.llI.Pt.lV. 


CHAPTER  IV. 

CARRIERS   OF   MESSAGES. 

§  2161.     Obligation    of   carrier   of  messages. 

§  2162.     Degree    of   care   and   diligence   required. 

§2161.     OBLIGATION  OF  CARRIER  OF  MESSAGES. 

A  carrier  of  messages  for  reward,  other  than  by  telegraph  or 
telephone,  must  deliver  them  at  the  place  to  which  they  are 
addressed,  or  to  the  person  for  whom  they  are  intended.  Such 
carrier,  by  telegraph  or  telephone,  must  deliver  them  at  such 
place  and  to  such  person,  provided  the  place  of  address,  or 
the  person  for  whom  they  are  intended,  is  within  a  distance 
of  two  miles  from  the  main  office  of  the  carrier  in  the  city 
or  town  to  which  the  messages  are  transmitted,  and  the  car- 
rier is  not  required,  in  making  the  delivery,  to  pay  on  his 
route  toll  or  ferriage;  but  for  any  distance  beyond  one  mile 
from  such  office,  compensation  may  be  charged  for  a  mes- 
senger employed  by  the  carrier. 

History:  Enacted  March  21,  1872;  amended  March  80,  1874, 
Code  Amdts.  1873-4,  p.  248;  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  413,  held  unconstitutional,  see 
history,  §  4  ante;  amendment  re-enacted  March  21,  1905,  Stats, 
and  Amdts.   1905,  p.   627. 

§2162.  DEGREE  OF  CARE  AND  DILIGENCE  RE- 
QUIRED. A  carrier  of  messages  for  reward  must  use  great 
care  and  diligence  in  the  transmission  and  delivery  of  mes- 
sages. 

History:  Enacted  March  21,  1872;  amended  March  30.  1874, 
Code  Amdts.  1873-4,  p.   249. 


740 


Tit.VII.ch.V.art.I.J    COMMON  CARRIERS.  §§2168.2169 


CHAPTER  V. 

COMMON  CARRIERS. 

Article   I.  Common  Carriers  in  General,  §§  2168-2177. 

II.  Common   Carriers  of  Persons,  §§2180-2191. 

III.  Common  Carriers  of  Property,  §§2194-2204. 

IV.  Common  Carriers  of  Messages,  §§  2207-2209. 


ARTICLE  I. 

COMMON  CARRIERS  IN  GENERAL. 

§  2168.  Common    carriers,   what. 

§  2169.  Obligation    to    accept    freight. 

§  2170.  Common  carriers  not  to  give  preference. 

§  2171.  What  preferences  he   must  give. 

§  2172.  Starting. 

§  2173.  Compensation. 

§  2174.  Obligations   of  carrier  altered   only   by   agreement. 

§  2175.  Certain   agreements  void. 

§  2176.  Modifications   thereof. 

§  2177.  Loss   of  valuable   letters. 


§2168.  COMMON  CARRIER,  WHAT.  Every  one  who 
offers  to  the  public  to  carry  persons,  property,  or  messages, 
excepting  only  telegraphic  messages,  is  a  common  carrier 
of  whatever  he   thus  offers  to  carry. 

History:  Enacted  March  21,  1S72;  amendi-d  Maroli  ."ifi,  1S7-1, 
Code    .Xmdts.    1873-4,    p.    249. 

§2169.     OBLIGATION     TO     ACCEPT     FREIGHT.     A 

common  carrier  must,  if  al)le  to  do  so,  accept  and  carry  what- 

741 


§§2170-2172  CIVIL  CODE.  [Div.III.Pt.IV. 

ever  is  offered   tu   him,  at  a   reasonable   time  and  place,  of  a 
kind   that   he   undertakes   or  is  accustomed   to   carry. 

IliNtory:     Enacted  March   21,   1872. 

§2170.  COMMON  CARRIERS  NOT  TO  GIVE  PREF- 
ERENCE. A  common  carrier  must  not  give  preference  in 
time,  price,  or  otherw^ise,  to  one  person  over  another.  Every 
common  carrier  of  passengers  by  railroad,  or  by  vessel  ply- 
ing upon  waters  lying  wholly  within  this  state,  shall  estab- 
lish a  schedule  time  for  the  starting  of  trains  or  vessel[s] 
from  their  respective  stations  or  wharves,  of  which  public 
notice  shall  be  given,  and  shall,  weather  permitting,  except 
in  case  of  accident  or  detention  caused  by  connecting  lines, 
start  their  said  trains  or  vessel[s]  at  or  within  ten  minutes 
after  the  schedule  time  so  established  and  notice  given,  un- 
der a  penalty  of  two  hundred  and  fifty  dollars  for  each  neg- 
lect so  to  do,  to  be  recovered  by  action  before  any  court 
of  competent  jurisdiction,  upon  complaint  filed  by  the  dis- 
trict attorney  of  the  county  in  the  name  of  the  people,  and 
paid  into  the  common  school  fund  of  the  said  county. 

History:  Enacted  March  21,  1872;  amended  April  2,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  p.  2;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  414.  held 
unconstitutional,    see    history,    §  4    ante. 

§2171.  WHAT  PREFERENCES  HE  MUST  GIVE.  A 
common  carrier  must  always  give  a  preference  in  time,  and 
may  give  a  preference  in  price,  to  the  United  States  and  to 
this  state. 

Hl.story:      Enacted  March   21,   1872. 

§2172.  STARTING.  A  common  carrier  must  start  at 
such  time  and  place  as  he  announces  to  the  public,  unless  de- 
tained by  accident  or  the  elements,  or  in  order  to  connect 
with  carriers  on  other  lines  of  travel. 

History:  Enacted  March  21,  1S72;  amended  Marcli  oO,  1874, 
Code   Amdts.    1873-4,    p.    249. 

742 


Tit.VIl.cliA'.art.l.l        rOMPENSATFOX.  §§2173-2176 

§2173.  COMPENSATION.  A  cciunioii  carrier  is  en- 
titled to  a  reasonable  compensation  and  no  more,  which  he 
may  require  to  be  paid  in  advance.  If  payment  thereof  is 
refused,   he   may   refuse   to   carr}'. 

Hi.«itor.v:      Enacted  Maicli    :;i,    1S72. 


§2174.  OBLIGATIONS  OF  CARRIER  ALTERED 
ONLY  BY  AGREEMENT.  The  obligations  of  a  common 
carrier  cannot  be  limited  by  general  notice  on  his  part,  but 
may  be  limited  by  special  contract. 

HLstory:  Enacted  March  21,  1S72;  amended  March  :!U.  1ST4, 
Code   Anidts.    1873-4,    p.    2-19. 

§2175.  CERTAIN  AGREEMENTS  VOID.  A  common 
carrier  cannot  be  exonerated,  by  any  agreement  made  in 
anticipation  thereof,  from  liability  for  the  gross  negligence, 
fraud,  or  wilful  wrong  of  himself  or  his  servants. 

History:     Enacted  March   21,   1872. 

§2176.  MODIFICATIONS  THEREOF.  A  passenger, 
consignor,  or  consignee,  by  accepting  a  ticket,  bill  of  lading, 
or  written  contract  for  carriage,  with  a  knowledge  of  its 
terms,  assents  to  the  rate  of  hire,  the  time,  place,  and  manner 
of  delivery  therein  stated;  and  also  to  the  limitation  stated 
therein  upon  the  amount  of  the  carrier's  liability  in  case  prop- 
erty carried  in  packages,  trunks,  or  boxes,  is  lost  or  injured, 
when  the  value  of  such  property  is  not  named;  and  also  to 
the  limitation  stated  therein  to  the  carrier's  liability  for  loss 
or  injury  to  live  animals  carried.  But  his  assent  to  anj^  other 
modification  of  the  carrier's  obligations  contained  in  such 
instrument  can  be  manifested  only  ])y  his  signature  to  tlie 
same. 

Hist<»ry:  Enacted  March  21,  1S72;  amended  Marcli  30,  1874, 
C(Hlf  Amdts.   1873-4,  pp.   249-2.')0. 

743 


§2177  <"ivil.  CODE.  fDiv.III.rt.TV. 

§2177.  LOSS  OF  VALUABLE  LETTERS.  A  common 
carrier  is  not  responsible  for  loss  or  miscarriage  of  a  letter, 
or  package  having  the  form  of  a  letter,  containing  money  or 
notes,  bills  of  exchange,  or  other  papers  of  value,  unless  he 
be  informed  at  the  time  of  its  receipt  of  the  value  of  its  con- 
tents. 

History:     Enacted  March   30,   1S74,   Code  Amdts.  1873-4.  p.   230. 


744 


Tit.VJl.ch.V.art.n.J   carrying  LUGGAGE.  §§2180,2181 


.       ARTICLE  II. 

COMMON  CARRIERS  OF  PERSONS. 

§  lilSO.  Obligation    to   carry   luggage    [baggage]. 

§  2181,  Luggage    defined.      [What    may    be    carried    as.] 

§  2182.  Liability   for  luggage. 

§  2183.  Luggage,  how   carried  and   delivered. 

§  2184.  Obligation  to  provide  vehicles. 

§  2185.  Seats  for  passengers. 

§  2186.  Regulations  for  conduct  of  business. 

§  2187.  Fare,  when  payable. 

§  2188.  Ejection    of   passengers. 

§  2189.  Passenger   who   has    not    paid    fare. 

§  2190.  Fare  not  payable  after   ejection. 

§  2191.  Carrier's  lien. 

§2180.  OBLIGATION  TO  CARRY  LUGGAGE  [BAG- 
GAGE]. A  common  carrier  of  persons,  unless  his  vehicle 
is  fitted  for  the  reception  of  persons  exclusively,  must  re- 
ceive and  carry  a  reasonable  amount  of  baggage  for  each 
passenger  without  charge,  except  for  an  excess  of  weight 
over  one  hundred  pounds  to  a  passenger;  if  such  carrier  is 
a  proprietor  of  a  stage  line,  he  need  not  receive  and  carry 
for  each  passenger  by  such  stage  line,  withotit  charge,  more 
tlian  sixty  pounds  of  baggage. 

Hixtory:  Enacted  March  21,  1872;  amended  March  9,  1878, 
(^ode  Amdts.  1877-8,  p.  87;  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  414,  held  unconstitutional,  see 
history,  §  4  ante;  amendment  re-enacted  March  21,  1905,  Stats, 
and  Amdts.   190ri,  p.   61;^. 


§2181.  LUGGAGE  DEFINED.  [WHAT  MAY  BE 
CARRIED  AS.]  Luggage  may  consist  of  whatever  the  pas- 
senger takes  with  him  for  his  personal  use  and  convenience, 
according  to  the  habits  or  wants  of  the  particular  class  to 
which  he  belongs,  either  with  reference  to  the  important  ne- 

745 


§§2182,2183  civil,  code.  [Div.lII,Pi.l V. 

cessities  or  to  the  ultimate  purposes  of  his  journey.  Luggage 
within  the  meaning  of  this  section  shall  include  the  samples, 
case,  wares,  appliances  and  catalogs  of  commercial  travelers 
or  their  employers,  used  by  them  for  the  purpose  of  trans- 
acting their  business  and  carried  with  them  solely  for  that 
purpose,  when  securely  packed  and  locked  in  substantial 
trunks  or  sample  cases  of  convenient  shape  and  weight  for 
handling.  No  crate  cover  or  other  protection  shall  be  re- 
quired for  any  bicycle  carried  as  luggage,  but  no  passenger 
shall  be  entitled  to  carry  as  luggage  more  than  one  bicycle. 

■  HI.»i«ory:  Enacted  March  21,  1S72;  amended  March  9,  1878, 
Code  Anidts.  1877-8,  p.  87;  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1.  p.  414,  held  unconstitutional,  see 
Kerr's  Cyc.  C.  C.  §4;  amendment  re-enacted  March  21,  1905, 
Stats,  and  Amdts.  190.5,  p.  615;  April  5.  1911,  Stats,  and  Amdts. 
1911,  p.    638. 


§2182.  LIABILITY  FOR  LUGGAGE.  The  liability  of 
a  carrier  for  luggage  received  by  him  with  a  passenger  is 
the  same  as  that  of  a  common  carrier  of  property. 

History:     Enacted  March   21,   1872. 


§2183.  LUGGAGE,  HOW  CARRIED  AND  DELIV- 
ERED. .\  common  carrier  must  deliver  every  passenger's 
luggage,  whether  within  the  prescribed  weight  or  not,  imme- 
diately upon  the  arrival  of  the  passenger  at  his  destination; 
and,  unless  the  vehicle  would  be  overcrowded  or  overloaded 
thereby,  must  carry  it  on  the  same  vehicle  by  which  he  car- 
ries the  passenger  to  whom  it  belonged,  except  that  where 
luggage  is  transported  by  rail,  it  must  be  checked  and  car- 
ried in  a  regular  baggage  car;  and  whenever  passengers  neg- 
lect or  refuse  to  have  their  luggage  so  checked  and  trans- 
ported, it  is  carried  at  their  risk. 

History:  Enacted  Marcli  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  250. 

746 


Tit.VlI.ch.V.art.ll.]  SEATS  FOR  PASSKXCERS.     §§2184-2189 

§2184.     OBLIGATION  TO   PROVIDE   VEHICLES.     A 

common  carrier  of  persons  must  provide  a  sufficient  number 
of  vehicles  to  accommodate  all  the  passengers  who  can  be 
reasonably  expected  to  require  carriage  at  any  one  time. 

History:     Enacted  March    21,   1S72. 

§2185.  SEATS  FOR  PASSENGERS.  A  common  car- 
rier of  persons  must  provide  every  passenger  with  a  seat. 
He  must  not  overload  his  vehicle  by  receiving  and  carrying 
more   passengers  than   its   rated  capacity  allows. 

HLstory:      Enacted  March   21,   1S72. 

§2186.  REGULATIONS  FOR  CONDUCT  OF  BUSI- 
NESS. A  common  carrier  of  persons  may  make  rules  for 
the  conduct  of  his  business,  and  may  require  passengers  to 
conform  to  them,  if  they  are  lawful,  public,  uniform  in  tlieir 
application,  and  reasonable. 

History:      Enacted  March    21,   1872. 


§2187.  FARE,  WHEN  PAYABLE.  A  common  carrier 
may  demand  the  fare  of  passengers,  either  at  starting  or  at 
any  subsequent  time. 

History;      Enacted  Marcli    21.    1S72. 

§2188.  EJECTION  OF  PASSENGERS.  A  passenger 
who  refuses  to  pay  his  fare  or  to  conform  to  any  lawful 
regulation  of  the  earner,  may  be  ejected  from  the  vehicle 
by  the  carrier.  But  this  must  be  done  with  as  little  violence 
as  possible,  and  at  any  usual  stopping  place  or  near  some 
dwelling-house. 

History:     Enacted  March    21.   1S72. 

§2189.     PASSENGER    WHO    HAS    NOT    PAID    FARE. 

.V  passenger  upon  a  railroad  train  wlu)  lias  nut  paid  lli^  fare 

747 


§§2190,2191  f^TVIT.  CODK  fDiv.HF.Pt.TV. 

before  entering  the  train,  if  he  has  been  afiforded  an  oppor- 
tunity to  do  so,  must,  upon  demand,  pay  ten  per  cent  in  addi- 
tion to  the  regular  rate. 

History:     Enacted  March   21,   1S72. 

§2190.     FARE    NOT    PAYABLE    AFTER    EJECTION. 

After  having  ejected  a  passenger,  a  carrier  has  no  right  to 
require   the  payment  of  any  part  of  his  fare. 

History:      Enacted  March   21,   1872. 

§  2191.  CARRIER'S  LIEN.  A  common  carrier  has  a  lien 
upon  the  luggage  of  a  passenger  for  the  payment  of  such 
fare  as  he  is  entitled  to  from  him.  This  lien  is  regulated 
by  the  title  on  liens. 

History:      Enacted  March   21,   1872. 


748 


Tit.VTT.cli.V.art.HT.l    tjap.ttjtv  FOR  LOSS.  §§2194.2195 


ARTICLE  111. 

COMMON  CARRIERS  OF  PROPERTY. 

§  2194.  Liability  of  inland  carriers  for  loss. 

§  219.'').  When   exemptions   do   not   apply. 

§  2196.  Liability  for  delay. 

§2197.  Liability   of  marine  carriers. 

§  219S.  Same.      [Acts   of  Congress.] 

§  2199.  Perils   of  sea,   what. 

§  2200.  Consignor   of   valuables    to   declare    tlieir   nature. 

§  2201.  Delivery   of   freight   beyond   usual   route. 

§  2202.  Proof   to  be   given   in    case   of   loss. 

§  2203.  Carrier's  services,   other   than   carriage  and   delivery. 

§  2204.  Non-delivery — Sale,  when. 

§2194.  LIABILITY  OF  INLAND  CARRIERS  FOR 
LOSS.  Unless  the  consignor  accompanies  the  freight  and 
retains  exclusive  control  thereof,  an  inland  common  carrier 
of  property  is  liable,  from  the  time  that  he  accepts  until  he 
relieves  himself  from  liability  pursuant  to  sections  twenty- 
one  hundred  and  eighteen  to  twenty-one  hundred  and  twenty- 
two,  for  the  loss  or  injury  thereof  from  any  cause  whatever, 
except: 

1.  An  inherent  defect,  vice,  or  weakness,  or  a  spontaneous 
action,  of  the  property  itself; 

2.  The  act  of  a  public  enemy  of  the  United  States,  or  of 
this  state; 

3.  The  act  of  the  law;  or, 

4.  Any  irresistible  superhuman  cause. 

History:      Enacted  March   21,   1872. 

§2195.     WHEN    EXEMPTIONS    DO    NOT   APPLY.     A 

common   carrier  is   liable,  even   in   the   cases   excepted   by  the 

749 


§S  2196-2199  CIVIL  CODE.  [Div.in.Pt.IV. 

last  section,  if  his  want  of  ordinary  care  exposes  the  property 
to  the  cause  of  the  loss. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  414, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted   March    21,    1905,   Stats,   and  Amdts.   1905,   p.    615. 

§2196.  LIABILITY  FOR  DELAY.  A  common  earner 
is  liable  for  delay  only  when  it  is  caused  by  his  want  of  or- 
dinary care  and  diligence. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code   Amdts.    1873-4.    p.    251. 

§2197.  LIABILITY  OF  MARINE  CARRIER.  A  ma- 
rine carrier  is  liable  in  like  manner  as  an  inlanrl  carrier,  ex- 
cept for  loss  or  injurj^  caused  by  the  perils  of  the  sea  or  fire. 

History:     Enacted  March   21,   1872. 


§2198.  SAME.  [ACTS  OF  CONGRESS.]  The  liability 
of  a  common  carrier  by  sea  is  further  regulated  by  acts  of 
Congress. 

History:      Enacted  March   21.   1872. 


§  2199.     PERILS  OF  SEA,  WHAT.     Perils  of  the  sea  are 

from: 

1.  Storms  and  waves; 

2.  Rocks,  shoals,  and  rapids; 

3.  Other  obstacles,  though  of  human  origin; 

4.  Changes  of  climate; 

5.  The  confinement  necessary  at   sea; 

6.  Animals  peculiar  to  the  sea;  and, 

7.  All  other  dangers  peculiar  to  the  sea. 

Historj-:     Enacted  Mai'ch   2i.   1872. 
75D 


Tit.\II.ch.V,art.III.]     DECLARING  VALUABLES.  §§2200-2203 

<!  2200.  CONSIGNOR  OF  VALUABLES  TO  DECLARE 
THEIR  NATURE.  A  common  carrier  of  gold,  silver,  plat- 
ina,  or  precious  stones,  or  of  imitations  thereof,  in  a  marm- 
factured  or  unmanufactured  state;  of  timepieces  of  anj'  de- 
scription; of  negotiable  paper  or  other  valuable  writings;  of 
pictures,  glass,  or  chinaware;  of  statuarj^  silk,,  or  laces;  or 
of  plated  ware  of  any  kind,  is  not  liable  for  more  than  fifty 
dollars  upon  the  loss  or  injury  of  any  one  package  of  such 
articles,  unless  he  has  notice,  upon  his  receipt  thereof,  by 
mark  upon  the  package  or  otherwise,  of  the  nature  of  the 
freight;  nor  is  such  carrier  liable  upon  any  package  carried 
for  more  than  the  value  of  the  articles  named  in  the  receipt 
or  the  bill  of  lading. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1ST4, 
Code  Amdts.   1S73-4,  p.   251. 

S220L  DELIVERY  OF  FREIGHT  BEYOND  USUAL 
ROUTE.  If  a  common  carrier  accepts  freight  for  a  place 
beyond  his"  usual  route,  he  must,  unless  he  stipulates  other- 
wise, deliver  it  at  the  end  of  his  route  in  that  direction  to 
some  other  competent  carrier  carrying  to  the  place  of  ad- 
dress, or  connected  with  those  who  thus  carry,  and  his  lia- 
bility ceases   upon   making   such   delivery. 

History:     Enacted   Marcli   21,   1.ST2. 

§2202.     PROOF   TO    BE    GIVEN   IN    CASE   OF   LOSS. 

II  freight  addressed  to  a  place  beyond  the  usual  route  of  the 
common  carrier  who  first  received  it  is  lost  or  injured,  he 
must,  within  a  reasonable  time  after  demand,  give  satisfac- 
tory proof  to  the  consignor  that  the  loss  or  injury  did  not 
occur  while  it  was  in  his  charge,  or  he  will  be  himself  liable 

therefor.  ^ 

History:      Enacted   Marcli    21.    1"5T2. 

§2203.  CARRIER'S  SERVICES,  OTHER  THAN  CAR- 
RIAGE AND   DELIVERY.      In   respect   to  any   service   ren- 

751 


§§2204  CIVIL  CODE.  [Div.lII.Pt.IV. 

dered  by  a  common  carrier  about  freight,  other  than  its  car- 
riage and  delivery,  his  rights  and  obligations  are  defined  by 
the    titles    on    deposit    and    service. 

History:      Enacted  March   21,   1872. 

§2204.  NON-DELIVERY— SALE,  WHEN.  If,  from 
any  cause  other  than  want  of  ordinary  care  and  diligence 
on  his  part,  a  common  carrier  is  unable  to  deliver  perishable 
property  transported  by  him,  and  collect  his  charges  there- 
on, he  may  cause  the  property  to  be  sold  in  open  market 
to  satisfy  his  lien  for   freightage. 

History:      Enacted  March   30,   1874,  Code  Amdts.    1873-4,  p.   251. 


752 


Tit.VII,ch.V,art.lV.]     TELEGRAPHS,   ETC.  §§2207,2208 


ARTICLE  IV. 

COMMON    CARRIERS   OP   MESSAGES. 

>!  -207.      Ofder   of   transmission   of   telegraphic   messages. 

S  2208.     Order  in  other  eases. 

§  2209.     Damages   when    message    is    refused   or   postponed. 

§2207.  ORDER  OF  TRANSMISSION  OF  TELE- 
GRAPHIC MESSAGES.  A  carrier  of  messages  by  tele- 
graph must,  if  it  is  practicable,  transmit  every  such  message 
immediately  upon  its  receipt.  But  if  this  is  not  practicable, 
and  several  messages  accumulate  upon  his  hands,  he  must 
transmit  them  in  the   following  order: 

1.  Messages  from  public  agents  of  the  United  States  or  of 
this  state,  on  public  business; 

2.  Messages  intended  in  good  faith  for  immediate  pul)lica- 
tion  in  newspapers,  and  not  for  any  secret  use; 

3.  Messages  giving  information  relating  to  the  sickness  or 
death  of  any  person; 

4.  Other  messages  in  the  order  in  which  they  were  re- 
ceived. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  414, 
held   unconstitutional,   see   history,   §  4   ante. 

§  2208.  ORDER  IN  OTHER  CASES.  A  common  carrier 
of  messages,  otherwise  than  by  telegraph,  must  transmit 
messages  in  the  order  in  which  he  receives  them,  except 
messages  from  agents  of  the  United  States  or  of  this  state, 
on  public  business,  to  which  he  must  always  give  priority. 
Rut  he  may  fix  upon  certain  times  for  the  simultaneous  trans- 
mission  of  messages  previously  received. 

History;  Enacted  Marcli  21.  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  414, 
held  unconstitutional,  see  liistory,  §  4  ante. 

753 


§2209  CIVIL   CODE.  [Div.IlI,l't.lV. 

§2209.  DAMAGES  WHEN  MESSAGE  IS  REFUSED 
OR  POSTPONED.  Every  person  whose  message  is  refused 
or  postponed,  contrary  to  the  provisions  of  this  chapter,  is 
entitled  to  recover  from  the  carrier  his  actual  damages,  and 
fifty  dollars  in   addition  thereto. 

History:     Enacted  March   21,  1872. 


754 


Tit.VIII,ch.I,art.l.]     TRUSTS— NATURE,    ETC.  §2215 


TITLE  VIII. 
TRUSTS. 

[ConiiiiiHsIuuers*  note. — -This  title  should  be  read  in  connec- 
tion with  the  title  on  "Uses  and  Trusts,"  §§  847  to  871,  inclusive, 
and  it  must  be  borne  in  mind  that  the  latter  relates  to  real 
property  only,  and  "Uses  and  Trusts"  are  treated  as  estates.  In 
this  title  "Trusts"  are  considered  as  relating  to  property  gen- 
erally, and  are  treated  in   the  light  of  obligations.] 

Chapter  I.     Trusts   in   General,   §§2215-2244. 

II.     Trusts  for  the  Benefit  of  Third  Persons.  §§2250- 
2289. 


CHAPTER  I. 

TRUSTS  IN  GENERAL. 

Article  I.     Nature  and  Creation  of  a  Trust.  §§2215-2224. 
II.     Obligations  of  Trustees,  §§2228-2239. 
III.     Obligations  of  Third   Persons,  §§2243,  2244. 


ARTICLE  I. 

N.VTURE   AND    CREATION    OK    A    TRUST. 

§  221.').  Trusts   classified. 

§2216.  Voluntary   trust,  what. 

§  2217.  Involuntary   trust,    wliat. 

§  2218.  Parties    to    the    contract. 

§  2219.  What  constitutes   one  a   trustee. 

§  2220.  For  wliat  purpose   a   trust   may   be   created. 

755 


§§2215-2219  <"IVIT.  roDE.  [Div.lIT.rtJV. 

§  2221.  Voluntary   trust,   how  created  as   to  truster. 

§  2222.  How   created  as  to   trustee. 

§  2223.  Involuntary  trustee,  who  is. 

§  2224.  Involuntary    trust    resulting    from    negligence,    etc. 


§2215.     TRUSTS    CLASSIFIED.     A   trust   is   either: 

1.  Voluntary;   or, 

2.  Involuntary. 

HLstory:      Enacted  March   21,   1S72. 

§2216.  VOLUNTARY  TRUST,  WHAT.  A  voluntary 
trust  is  an  obligation  arising  out  of  a  personal  confidence  re- 
posed in,  and  voluntarily  accepted  by,  one  for  the  benefit  of 
another. 

History:     Enacted  March   21,   1872. 


§2217.  INVOLUNTARY  TRUST,  WHAT.  An  involun- 
tary trust  is  one  which  is  created  by  operation  of  law. 

History:      Enacted  March   21,   1872. 

§2218.  PARTIES  TO  THE  CONTRACT.  The  person 
whose  confidence  creates  a  trust  is  called  the  truster;  the 
person  in  whom  the  confidence  is  reposed  is  called  the 
trustee;  and  the  person  for  whose  benefit  the  trust  is  cre- 
ated is  called  the  beneficiary. 

Hi.story:      Enacted  March   21,   1872. 


§2219.     WHAT    CONSTITUTES     ONE    A    TRUSTEE. 

Every  one  who  voluntarily  assumes  a  relation  of  personal 
confidence  with  another  is  deemed  a  trustee,  within  the 
meaning  of  this  chapter,  not  only  as  to  the  person  M'ho  re- 
poses such  confidence,  but  also  as  to  all  person's  of  whose 
affairs  he  thus  acquires  information  which  was  given  to  such 

756 


Til.VIH.ch.T.art.I.]     rT'npoRES  of  TRUSTS.  §§2220-2223 

person   in   the   like  confidence,   or   over  whose   affairs   he,   by 
such  confidence,  obtains  any  control. 

History:      Enacted  March   :il,    liil'l. 

§2220.  FOR  WHAT  PURPOSE  A  TRUST  MAY  BE 
CREATED.  A  trust  may  l)e  created  for  any  purpose  for 
which  a  contract  may  lawfully  be  made,  except  as  otherwise 
prescril)ed  l)y  the  titles  on  uses  and  trusts  and  on  transfers. 

Hi-story:      Enacted  March   21,   1S72. 

§2221.  VOLUNTARY  TRUST,  HOW  CREATED  AS 
TO  TRUSTER.  Subject  to  the  provisions  of  section  eight 
liundred  and  fifty-two,  a  voluntary  trust  is  created,  as  to  the 
truster  and  beneficiary,  by  any  words  or  acts  of  the  truster, 
indicating  with  reasonable  certainty: 

1.  An  intention  on  the  part  of  the  truster  to  create  a  trust; 
and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  trust. 

History:     Enacted   Mai-cli    i!l,    1S72. 

§2222.  HOW  CREATED  AS  TO  TRUSTEE.  Subject 
to  the  provisions  of  section  eight  hundred  and  fifty-two,  a 
voluntary  trust  is  created,  as  to  the  trustee,  by  any  words 
or  acts  of  his  indicating,  with   reasonable   certainty: 

1.  His  acceptance  of  the  trust,  or  his  acknowledgment, 
made  upon  sufficient  consideration,  of  its  existence;  and, 

2.  The  subject,  purpose,  and  l)encficiary  of  the  trust. 

History:      Enacted  Marcli   21,    1872. 

§2223.     INVOLUNTARY     TRUSTEE,    WHO     IS.     One 

who    wrongfully    detains    a    thing    is    an    involuntary    trustee 
thereof,  for  the  benefit  of  the  owner. 

History:     Enacted  March  21,   1872. 
757 


§2224  CIVIL  CODE.  [r3iv.If  [,Pt.IV. 

§2224.  INVOLUNTARY  TRUST  RESULTING  FROM 
NEGLIGENCE,  ETC.  One  who  gains  a  thing  by  fraud, 
accident,  mistake,  undue  influence,  the  violation  of  a  trust, 
or  other  wrongful  act,  is,  unless  he  has  some  other  and  bet- 
ter right  thereto,  an  involuntary  trustee  of  the  thing  gained, 
for  the  benefit  of  the  person  who  would  otherwise  have 
had   it. 

History:      Enacted  March   21,   1872. 


758 


Tit.Vlll,ch.I,art.ll.]  TRUSTEES.  §§2228-2230 


ARTICLE  II. 

OBLIGATIONS   OF    TRUSTEES. 

§  2-28.  Trustee's    obligation    to   good   faith. 

§  2229.  Trustee    not   to    use   property    for    liis    own    profit. 

§  2230.  Certain    transactions    forbidden. 

§  2231.  Trustee's  influence  not  to  be  used  for  his  advantage. 

§  2232.  Trustee    not    to    assume    a    trust    adverse    to    interest    of 

beneficiary. 

§  2233.  To    disclose    adverse    interest. 

§  2234.  Trustee    guilty    of   fraud,    when. 

§  2235.  Presumption   against   trustees. 

§  2236.  Trustee    mingling   trust   property   with    his    own. 

§  2237.  Measure  of  liability   for  breach   of   trust. 

§  2238.  Same.      [For   losses   only,   when,] 

§  2239.  Cotrustees,   how   far  liable  for   each   other. 


§2228.     TRUSTEE'S  OBLIGATION  TO  GOOD  FAITH. 

In  all  matters  connected  with  his  trust,  a  trustee  is  bound 
to  act  in  the  highest  good  faith  toward  his  beneficiary,  and 
may  not  obtain  any  advantage  therein  over  the  latter  by  the 
slightest  misrepresentation,  concealment,  threat,  or  adverse 
pressure   of   any   kind. 

History:      Enacted  March   21,   1872. 


§  2229.     TRUSTEE    NOT    TO    USE    PROPERTY    FOR 

HIS  OWN  PROFIT.  A  trustee  may  not  use  or  deal  with 
the  trust  property  for  his  own  profit,  or  for  any  other  pur- 
pose unconnected  with  the  trust,  in  any  manner. 

History:      Enacted  March   21,    187  2. 


§2230.     CERTAIN       TRANSACTIONS      FORBIDDEN. 

Neither  a  trustee  nor  any  of  his  agents  may  take  part  in  any 
transaction  concerning  the  trust  in  which  he  or  any  one  for 

759 


§§2231-2233  CIVIL  code.  [Div.ll  LPt.IV. 

wliom  he  acts  as  agent  has  an  interest,  present  or  contin- 
gent, adverse  to  that  of  his  beneficiary,  except  as  follows: 

1.  When  the  beneficiary,  having  capacity  to  contract,  with 
a  full  knowledge  of  the  motives  of  the  trustee,  and  of  all 
other  facts  concerning  the  transaction  which  might  afifect  his 
own  decision,  and  without  the  use  of  any  influence  on  the 
part  of  the  trustee,  permits  him  to  do  so; 

2.  When  the  beneficiary  not  having  capacity  to  contract, 
the  proper  court,  upon  the  like  information  of  the  facts, 
grants  the  like  permission;  or, 

3.  When  some  of  the  beneficiaries  having  capacity  to  con- 
tract, and  some  not  having  it,  the  former  grant  permission  for 
themselves,  and  the  proper  court  for  the  latter,  in  the  man- 
ner above  prescribed. 

History;     Enacted  March   21.   1S72. 

-  §2231.  TRUSTEE'S  INFLUENCE  NOT  TO  BE  USED 
FOR  HIS  ADVANTAGE.  A  trustee  may  not  use  the  influ- 
ence which  his  position  gives  him  to  obtain  any  advantage 
from  his  beneficiary. 

History:      Enacted  March   21,   1S72. 

§2232.  TRUSTEE  NOT  TO  ASSUME  A  TRUST  AD- 
VERSE TO  INTEREST  OF  BENEFICIARY.  No  trustee, 
so  long  as  he  remains  in  the  trust,  ma}'  undertake  another 
trust  adverse  in  its  nature  to  the  interest  of  his  beneficiary 
in  the  subject  of  the  trust,  without  the  consent  of  the  latter. 

History:     Enacted  March   21,   1872. 

§2233.     TO    DISCLOSE    ADVERSE    INTEREST.     If   a 

trustee  acquires  anj'  interest,  or  becomes  charged  with  any 
duty,  adverse  to  the  interest  of  his  beneficiary  in  the  sub- 
ject of  the  trust,  he  must  immediately  inform  the  latter  there- 
of, and  may  be  at  once   removed. 

History:     Enacted  March  21,   1872. 

760 


Tit.VllI,ch.J,art.II.|    TRUSTEE'S    FRAT'D.  §§2234-2238 

§  2234.  TRUSTEE  GUILTY  OF  FRAUD,  WHEN.  Ev- 
ery violation  of  the  provisions  of  the  preceding-  sections  of 
this  article  is  a  fraud  against  the  l)eneficiary  of  a  trust. 

Hiwtorj-:      Enacted  Maich   :;],    ISTl'. 

§2235.     PRESUMPTION     AGAINST    TRUSTEES.     All 

transactions  between  a  trustee  and  his  beneficiary  during 
the  existence  of  the  trust,  or  while  the  influence  acquired  by 
the  trustee  remains,  by  which  he  obtains  any  advantage  from 
his  beneficiary,  are  presumed  to  be  entered  into  by  the  latter 
without  sufficient  consideration,  and  under  undue  influence. 

History:      Enacted  March   21,    1872. 

§2236.  TRUSTEE  MINGLING  TRUST  PROPERTY 
WITH  HIS  OWN.  A  trustee  who  wilfully  and  unneces- 
sarily mingles  the  trust  property  with  his  own,  so  as  to  con- 
stitute himself  in  appearance  its  absolute  owner,  is  liable  for 
its  safety  in  all  events,  and  for  the  value  of  its  use. 

History:  Enacted  March  21,  1S72;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  415, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted    March    21,    1905,    Stats,    and    .\mdts.    1905,    p.    615. 

§2237.  MEASURE  OF  LIABILITY  FOR  BREACH  OF 
TRUST.  A  trustee  who  uses  or  disposes  of  the  trust  prop- 
erty, contrary  to  section  twenty-two  hundred  and  twenty- 
nine,  may,  at  the  option  of  the  beneficiary,  be  required  to 
account  for  all  profits  so  made,  or  to  pay  the  value  of  its  use, 
and,  if  he  has  disposed  thereof,  to  replace  it,  witli  its  fruits, 
or  to  account  for  its  proceeds,  with  interest. 

History:     Enacted  March   21,    1S72. 

§2238.     SAME.     [FOR     LOSSES     ONLY,     WHEN.]     A 

trustee  who  uses  or  disposes  of  tlie  trust  property  in  any 
manner  not   authorized   by  the   trust,   l)ut    in   good   faiih,   and 

761 


§2239  «'ivn.  code.  f  Div.IIl.Pt.I  V. 

with  intent  to  serve  the  interests  of  tlie  l)eneficiary,  is  liable 
only  to  make  good  whatever  is  lost  to  the  beneficiary  by 
his   error. 

History:      Enacted   Maich    21,    1ST2. 

§  2239.  COTRUSTEES,  HOW  FAR  LIABLE  FOR  EACH 
OTHER.  A  trustee  is  responsible  for  the  wrongful  acts  of 
a  cotrustee  to  which  he  consented,  or  which,  by  his  negli- 
gence, he  enabled  the  latter  to  commit,  but  for  no  others. 

History:     Enactecl   March   21,   1872. 


762 


Tit.\III,ch.I,art.III.]    INVOLUNTARY  TRUST.        §§2243.2244 


ARTICLE  III. 

OBLIGATIONS  OF  THIRD  PERSONS. 

§  2243.     Third  person,   when  involuntary  trustee. 
§  2244.     When    third    person    must    see    to    application    of    trust 
property. 

§2243.  THIRD  PERSON,  WHEN  INVOLUNTARY 
TRUSTEE.  Every  one  to  whom  property  is  transferred  in 
violation  of  a  trust,  holds  the  same  as  an  involuntary  trustee 
under  such  trust,  unless  he  purchased  it  in  good  faith,  and 
for  a  valuable  consideration. 

HLstory:     Enacted  March  21,  1872. 

§2244.  WHEN  THIRD  PERSON  MUST  SEE  TO  AP- 
PLICATION OF  TRUST  PROPERTY.     One  who  actually 

and  in  good  faith  transfers  anj'  money  or  other  propertj'  to 
a  trustee,  as  such,  is  not  bound  to  see  to  the  application 
thereof,  and  his  rights  can  in  no  way  be  prejudiced  by  a 
misapplication  thereof  by  the  trustee.  Other  persons  must, 
at  their  peril,  see  to  the  proper  application  of  money  or  other 
property  paid  or  delivered  by  them. 

History:     Enacted  Marcli  21,  1872. 


763 


§§2250,2251  CIVIL  code.  [Div.lII.Pt.IV. 


CHAPTER  II. 

TRUSTS  FOR  THE  BENEFIT  OF  THIRD  PERSONS. 

Article  I.  Nature  and  Creation  of  the  Trust,  §§  2250-2254. 

II.  Obligations  of  Trustees,  §§2258-2263. 

III.  Powers  of  Trustees,  §§2267-2269. 

IV.  Rights   of  Trustees,   §§2273-2275. 

V.     Termination   of    the    Trust,    §§2279-2283. 
\  I.     Succession    or    Appointment    of    New    Trustees, 
§§  2287-2289. 


ARTICLE  I. 

NATURE  AND  CREATION  OF  THE  TRUST. 

§  2250.  Who  are  trustees  within   the  scope  of  this  c'napter. 

§  2251.  Creation  of  trust. 

§  2252.  Trustees  appointed  by  court. 

§  2253.  Declaration  of  trust. 

S  2254.  Same.      [Declarations  before  acceptance.] 

§2250.  WHO  ARE  TRUSTEES  WITHIN  SCOPE  OF 
THIS  CHAPTER.  The  provisions  of  this  chapter  apply 
only  to  express  trusts,  created  for  the  benefit  of  another 
than  the  truster,  and  in  which  the  title  to  the  trust  property 
is  vested  in  the  trustee:  not  including,  however,  those  of 
executors,  administrators,  and   guardians,   as   such. 

History:     Enacted  Marcli  21,  1S72. 

§2251.  CREATION  OF  TRUST.  The  mutual  consent 
of  a  truster  and  trustee  creates  a  trust  of  which  the  bene- 
ficiary may  take  advantage  at  any  time  prior  to  its  rescission. 

History:     Enacted  March  21,  1872. 
764 


Tit.VIII,ch.II,art.I.]  declaration  of.  §§2252-2254 

§2252.  TRUSTEES  APPOINTED  BY  COURT.  W  Iicn 
a  trustee  is  appointed  by  a  court  or  public  officer,  as  such, 
such  court  or  officer  is  the  truster,  within  the  meaning  of 
the   last   section. 

History:     Enacted  March  21,  1872. 

§2253.  DECLARATION  OF  TRUST.  The  nature,  ex- 
tent, and  object  of  a  trust  are  expressed  in  the  declaration 
of  trust. 

History:     Enacted  March  21,  1S72. 

§2254.  SAME.  [DECLARATION  BEFORE  ACCEPT- 
ANCE.] All  declarations  of  a  truster  to  his  trustees,  in  re- 
lation to  the  trust,  before  its  acceptance  by  the  trustees,  or 
any  of  them,  are  to  be  deemed  part  of  the  declaration  of  the 
trust,  except  that  when  a  declaration  of  trust  is  made  in  writ- 
ing, all  previous  declarations  by  the  same  truster  are  merged 
therein. 

History:     Enacted  March  21,  1S72. 


765 


§§2258-2260  civil  code.  |  Div.lII,Pt.IV. 


ARTICLE  II. 

OBLIGATIONS  OF  TRUSTEES. 

§  225S.  Trustees  must  obey  declaration  of  trust. 

§  2259.  Degree  of  care  and  diligence  in  execution  of  trust. 

§  2260.  Duty  of  trustee  as  to  appointment  of  successor. 

§  2261.  Investment  of  money  by  trustee. 

§  2262.  Interest,    simple    or    compound,    on    omission    to    invest 

trust  moneys. 

§  2263.  Purchase  by  trustee  of  claims  against  trust  fund. 


§  2258.  TRUSTEES  MUST  OBEY  DECLARATION  OF 
TRUST.  A  trustee  must  fulfil  the  purpose  of  the  trust,  as 
declared  at  its  creation,  and  must  follow  all  the  directions 
of  the  truster  given  at  that  time,  except  as  modified  by  the 
consent  of  all  parties  interested,  in  the  same  manner,  and 
to  the  same  extent,  as  an  employee. 

History:     Enacted  March  21,  1872. 


§  2259.  DEGREE  OF  CARE  AND  DILIGENCE  IN  EX- 
ECUTION OF  TRUST.  A  trustee,  whether  he  receives  any 
compensation  or  not,  must  use  at  least  ordinary  care  and  dili- 
gence  in   the  execution  of  his  trust. 

History:     Enacted  March  21,  1872. 


§2260.  DUTY  OF  TRUSTEE  AS  TO  APPOINTMENT 
OF  SUCCESSOR.  If  a  trustee  procures  or  assents  to  his 
discharge  from  his  office,  before  his  trust  is  fully  executed, 
he  must  use  at  least  ordinary  care  and  diligence  to  secure 
the  appointment  of  a  trustworthy  successor  before  accepting 
his  own  final  discharge. 

History-:     Enacted  March  21,  1872. 

766 


Tit.VIII.ch.il. art. 11. 1   IXVRSTMKNT.  rXTERKST.    §§2261-2263 

§2261.     INVESTMENT  OF   MONEY   BY   TRUSTEE.  A 

trustee  must  invest  money  received  by  him  under  the  trust, 
as  fast  as  he  collects  a  sufiicient  amount,  in  such  manner  as 
to  afford  reasonable  security  and  interest  for  the   same. 

Historj-:     Enacted  March  21,  1S7  2. 

§2262.  INTEREST,  SIMPLE  OR  COMPOUND,  ON 
OMISSION  TO  INVEST  TRUST  MONEYS.  If  a  trustee 
omits  to  invest  the  trust  moneys  according  to  the  last  sec- 
tion, he  must  pay  simple  interest  thereon,  if  such  omission 
is  negligent  merely,  and  compound  interest  if  it  is  wilful. 

History:     Enacted  March  21,  1872. 

§2263.  PURCHASE  BY  TRUSTEE  OF  CLAIMS 
AGAINST  TRUST  FUND.  A  trustee  cannot  enforce  any 
claim  against  the  trust  property  which  he  purchases  after  or 
in  contemplation  of  his  appointment  as  trustee;  but  he  may 
be  allowed,  by  any  competent  court,  to  charge  to  the  trust 
property  what  he  has  in  good  faith  paid  for  the  claim,  upon 
discharging  the  same. 

Hintory:     Enacted  March  21,  1872. 


767 


§§2267-2269  <^ivn.  CODE.  [Div.in,Pt.IV. 


ARTICLK  III. 

POWERS  OF  TRUSTEES. 

§  2267.     Trustee's  powers  as  agent. 

§  226S.      All  must  act. 

§  2269.      Discretionary  powers. 

§2267.  TRUSTEE'S  POWER  AS  AGENT.  A  trustee  is 
a  general  agent  for  the  trust  property.  His  authority  is  such 
as  is  conferred  upon  him  by  the  declaration  of  trust  and  by 
this  chapter,  and  none  other.  His  acts,  within  the  scope  of 
his  authority,  bind  the  trust  property  to  the  same  extent  as 
the  acts  of  an  agent  bind  his  principal. 

History:     Enacted  March  21,  1872. 

§2268.  ALL  MUST  ACT.  Where  there  are  several  co- 
trustees, all  must  unite  in  any  act  to  bind  the  trust  property, 
imless  the  declaration  of  trust  otherwise  provides. 

History:     Enacted  March  21,  1872. 

§2269.  DISCRETIONARY  POWERS.  A  discretionary 
power  conferred  upon  a  trustee  is  presumed  not  to  be  left 
to  his  arbitrary  discretion,  but  may  be  controlled  by  the 
proper  court  if  not  reasonably  exercised,  unless  an  absolute 
discretion   is  clearly  conferred  by  the  declaration  of  trust. 

History:     Enacted  March  21,  1872. 


768 


Tit.VIII,ch.II,art.IV.]     INDEMNIFICATION.  §§2273-2275 


ARTICLE  IV. 

■    RIGHTS   OF   TRUSTEES. 

§  2273.     Indemnification  of  trustee. 
§  2274.     Compensation  of  trustee. 
§  2275.     Involuntary   trustee. 

§2273.  INDEMNIFICATION  OF  TRUSTEE.  A  trus- 
tee is  entitled  to  the  repayment,  out  of  the  trust  property, 
of  all  expenses  actually  and  properly  incurred  by  him  in  the 
performance  of  his  trust.  -  He  is  entitled  to  the  repayment 
of  even  unlawful  expenditures,  if  they  were  productive  of  ac- 
tual benefit  to  the  estate. 

History:     Enacted  March  21,  1S72. 

§2274.  COMPENSATION  OF  TRUSTEE.  Except  as 
provided  in  section  seventeen  hundred  of  the  Code  of  Civil 
Procedure,  when  a  declaration  of  trust  is  silent  upon  the 
subject  of  compensation  the  trustee  is  entitled  to  the  same 
compensation  as  an  executor.  If  it  specifies  the  amount  of 
his  compensation,  he  is  entitled  to  the  amount  thus  specified 
and  no  more.  If  it  directs  that  he  shall  be  allowed  a  com- 
pensation, but  does  not  specify  the  rate  or  amount,  he  is 
entitled  to  such  compensation  as  may  be  reasonable  .under 
the  circumstances.  If  there  are  two  or  more  trustees  the 
compensation  shall  be  apportioned  among  the  trustees  ac- 
cording to  the  services  rendered  by  them  respectively. 

History:  Enacted  March  21.,  1872;  amended  March  19,  1889, 
Stats,  and  Amdts.  1889,  p.  334;  March  10,  1909,  Stats,  and  Amdts. 
1909,  p.   252. 

§2275.  INVOLUNTARY  TRUSTEE.  An  involuntary 
trustee,  who  becomes  such  through  his  own  fault,  has  none 
of  the  rights  mentioned  in  this  article. 

HLstory:     Enacted  March  21,  1872. 

25  769 


§§  2279-2282 


r'TVIT.    CODK. 


[Div.Tll,Pt.IV. 


§  1:279 
§  2280 
§  2281 
§  2282 
§  2283 


ARTICLE  V. 

TERMINATION  OF  THE  TRUST. 

Trust,    how   extinguished. 
Not  revocable. 

Trustee's  office,  how  vacated. 
Trustee,   how   discharged. 
Removal  of  trustee  by  court. 


§2279.  TRUST,  HOW  EXTINGUISHED.  A  trust  is 
extinguished  by  the  entire  fulfihnent  of  its  object,  or  by  such 
object   becoming-  impossible   or   unlawful. 

Hi.story:     Enacted  March  21,  1872. 

§2280.  NOT  REVOCABLE.  A  trust  cannot  be  revoked 
by  the  truster  after  its  acceptance,  actual  or  presumed,  by 
tlie  trustee  and  beneficiaries,  except  by  the  consent  of  all 
the  beneficiaries,  unless  the  declaration  ot  trust  reserves  a 
power  of  revocation  to  the  truster,  and  in  that  case  the  pow- 
er must  be  strictly  pursued. 

HLstory:     Enacted  March  21,  1872. 

§228L     TRUSTEE'S    OFFICE,   HOW   VACATED.     The 

office  of  a  trustee  is  vacated: 

1.  By  his  death;  or. 

2.  By  his  discharge. 

History:     Enacted  March  21,  1872. 


§2282.     TRUSTEE,     HOW     DISCHARGED.     A 

can  be  discharged  from  his  trust  only  as  follows: 

1.  By  the  extinction  of  the  trust; 

2.  By  the  completion  of  his  duties  under  the  trust; 

770 


trustee 


Tit.VIII.ch.II.art.V.]       DISCHARGE.    REMOVAL.  §2283 

3.  By  such  means  as  may  be  prescribed  by  the  declaration 
of  trust; 

4.  By   the   consent   of   the   beneficiary,   if   he   have   capacity 
to  contract; 

5.  By    the   judgment    of   a   competent   tribunal,    in   a    direct 
proceeding  for  that  purpose,  that  he  is  of  unsound  mind;  or, 

6.  By  the  superior  court. 

History:     Enacted  March  21,   1872;  amended  February  15,  1883, 
Stats,  and  Amdts.  1883,  p.  3. 

§2283.     REMOVAL    OF   TRUSTEE    BY  COURT.     The 

superior  court  may  remove  any   trustee  who  has  violated  or 

is  unfit   to   execute   the   trust,  or  may  accept  the   resignation 
of  a  trustee. 

History:       Enacted    March    21,     1872;     amended    April     6,    18SU, 
Code  Amdt.s.   1880   (C.  C.  pt.),  p.  8. 


771 


§§2287,2288  civil  code.  [Div.III,Pt.l V. 

ARTICLE  VI. 

SUCCESSION  OR  APPOINTMENT  OF  NEW  TRUSTEES. 

§  2287.     Vacant  trusteeship  filled  by  court. 
§  2288.     Survivorship  between  cotrustees. 
§2289.     Superior  court  as  trustee. 


§2287.  VACANT  TRUSTEESHIP  FILLED  BY 
COURT.     [NOMINATION    BY    CESTUI    QUE    TRUST.] 

The  superior  court  must  appoint  a  trustee  whenever  there  is 
a  vacancy,  and  the  declaration  of  trust  does  not  provide  a 
practical  method  of  appointment.  In  all  cases  of  appoint- 
ment of  any  trustee  or  trustees  by  any  court,  if  the  cestui 
que  trustent,  or  any  one  of  them  are  of  the  age  of  fourteer. 
years,  they,  or  the  one  or  more  of  them  of  the  age  of  four- 
teen years,  may  make  nomination  to  the  court,  and  unless 
such  nominee  or  nominees  are  incompetent,  upon  one  or 
more  of  the  grounds  of  incompetency  specified  in  section 
one  thousand  three  hundred  and  fifty  of  the  Code  of  Civil 
Procedure  of  California,  to  discharge  the  duties  of  trustee, 
the  court  must  appoint  such  nominee,  or  nominees,  as  trustee, 
or  trtistees  as  the  case  may  be. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  p.  8;  February  2.5,  1911,  Stats,  and 
Amdts.  1911,  p.  79;  June  6,  1913,  Stats,  and  Amdts.  1913,  p.  393. 
In  eHfect  August  10,   1913. 


§2288.     SURVIVORSHIP     BETWEEN    COTRUSTEES. 

On   the   death,   renunciation,   or   discharge   of   one   of   several 
cotrustees  the   trust  survives  to  the  others. 

History:     Enacted  March  21,  1872. 

772 


Tit.VIII,ch.II,art.VI.]    COURT  as  trustee.  §2289 

§2289.  SUPERIOR  COURT  AS  TRUSTEE.  When  a 
trusts  exists  without  any  appointed  trustee,  or  where  all  the 
trustees  renounce,  die,  or  are  discharged,  the  superior  court 
of  the  county  where  the  trust  property,  or  some  portion 
thereof,  is  situated,  must  appoint  another  trustee,  and  direct 
the  execution  of  the  trust.  The  court  may,  in  its  discretion, 
appoint  the  original  number,  or  any  less  number  of  trustees. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880,  Code 
Amdts.   18S0   (C.  C.  pt.),  p.  8. 


116 


§2295  CIVIL  CODE.  [Div.lII.Pt.lV. 


TITLE  IX. 
AGENCY. 

LCoiiiiiii.sMiuiiers'  iiote. — "Under  this  head  the  representation 
uf  one  person  by  anotlier  is  the  only  subject  treated.  Tlie  rights 
acquired  by  tliird  persons  against  both  the  principal  and  the 
agent  are  here  stated.  The  mutual  relations  of  principal  and 
agent  are  a  branch  of  service,  and  are  defined  in  the  title  on 
that  subject.  So  far  as  these  relations  create  a  mutual  trust, 
they  are  regulated  by  the  title  on  trusts."] 

Chapter  I.     Agency   in   General,   §§  2295-2356. 
II.     Particular  Agencies,  §§2362-2389. 


CHAPTER  I. 

AGENCY  IN   GENERAL. 

Article  I.     Definition  of  Agency,  §§  2295-2300. 
II.     Authority  of  Agents,  §§2304-2326. 

III.  Mutual  Obligations  of  Principals  and  Third   Per- 

sons, §§  2330-2339. 

IV.  Obligations  of  Agents  to   Third   Persons,   §§2342- 

2345. 
V.     Delegation  of  Agency,  §§  2349-2351. 
VI.     Termination  of  Agency,  §§  2355.  2356. 


774 


Tit.IX.ch.I.art.T.l       DKFTNTTlox— ktxds.  §§2295-2299 


ARTICLK  1. 

DEFINITION  OF  ACJKNOY. 

§  2295.  Agency,  what. 

§  2296.  Who  may  appoint,  and  who  maj-   be  an  agent. 

§  2297.  Agents,  general  or  special. 

§  2298.  Agency,  actual   or  ostensible. 

§  2299.  Actual  agency. 

§  2300.  Ostensible  agency. 

§2295.  AGENCY,  WHAT.  .\n  agent  is  one  who  repre,- 
sents  another,  called  the  principal,  in  dealings  with  third  per- 
sons.    Such   representation   is  called  agency. 

History:     Enacted  Mai'cli  21,   1S;72. 

§2296.  WHO  MAY  APPOINT,  AND  WHO  MAY  BE 
AN  AGENT.  Any  person  liaving  capacity  to  contract  may 
appoint  an  agent,  and  any  person  may  be  an  agent. 

History:     Enacted  Marcli   21,   1S72. 

§2297.  AGENTS,  GENERAL  OR  SPECIAL.  An  agent 
for  a  particular  act  or  transaction  is  called  a  special  agent. 
All  others  are  general  agents. 

History:     Enacted  Marcli   21,   1S72. 

§2298.     AGENCY,     ACTUAL     OR     OSTENSIBLE.     An 

agency  is  either  actual  or  ostensible. 

History:     Enacted  March   21,   1872. 

§2299.  ACTUAL  AGENCY.  .\n  agency  is  actual  when 
tlie  agent  is  really  employed  liy  the  principal. 

Hislory:     Enacted  .March   21,    1X72. 

775 


§2300  CIVIL  CODE.  [Div.III.Pt.IV. 

§2300.  OSTENSIBLE  AGENCY.  An  agency  is  osten- 
sible when  the  principal  intentionally,  or  by  want  of  ordi- 
nary care,  causes  a  third  person  to  believe  another  to  be 
his  agent  who  is  not  really  employed  by  him. 

History:     Enacted  March  21,  1872. 


776 


Tit.IX,ch.I,art.II.]     authority  OF  AGENTS.       §§2304,2305 


ARTICLE  II. 

AUTHORITY  OF  AGENTS. 

§  2304.  What  authority  may  be  conferred. 

§  2305.  Agent  may  perform  acts  required  of  principal  by  code. 

§  2306.  Agent  cannot  have  authority  to  defraud  principal. 

§  2307.  Creation   of  agency. 

§  2308.  Consideration   unnecessary. 

§  2309.  Form  of  authority. 

§  2310.  Ratification  of  agent's  act. 

§  2311.  Ratification  of  part  of  a  transaction. 

§  2312.  When  ratification  void. 

§  2313.  Ratification  not  to  vi^orlc  injury  to  third  persons. 

§  2314.  Rescission  of  ratification. 

§  2315.  Measure  of  agent's  authority. 

§  2316.  Actual  authority,  what. 

§  2317.  Ostensible  authority,  what. 

§  2318.  Agent's  authority  as  to  persons  having  notice  of  restric- 
tions upon  if. 

§  2319.  Agent's  necessary  authority. 

§  2320.  Agent's  power  to  disobey   instructions. 

§  2321.  Authority  to  be  construed  by  its  specific,  rather  than 
by  its  general  terms. 

§  2322.  Exceptions  to  general  authority. 

§  2323.  AVhat  included  in  authority  to  sell  personal  property. 

§  2324.  What  included  in  authority  to  sell  real  property. 

§  2325.  Authority  of  general  agent  to  receive  price  of  property. 

§  2326.  Authority    of    special    agent    to    receive   price. 


§2304.     WHAT  AUTHORITY  MAY  BE  CONFERRED. 

.A.n  agent  may  be  authorized  to  do  any  acts  which  his  prin- 
cipal might  do,  except  those  to  which  the  latter  is  bound  to 
give  his  personal  attention. 

History:     Enacted  March  21,  1872. 


§2305.     AGENT    MAY    PERFORM    ACTS    REQUIRED 
OF   PRINCIPAL  BY   CODE.     Every  act  which,  according 


§§2306-2310  CIVIL  CODE.  [Div.Ul.Pt.IV. 

to  this  code,  may  be  done  l)j^  or  to  any  person,  may  be  done 
Ijy  or  to  the  agent  of  such  person  for  that  purpose,  unless  a 
contrary  intention  clearly  appears. 

llisiory:     Enacted  Marrh  ::],  ISTii. 

§2306.  AGENT  CANNOT  HAVE  AUTHORITY  TO 
DEFRAUD  PRINCIPAL.  An  agent  can  never  have  au- 
thority, either  actual  or  ostensible,  to  do  an  act  which  is, 
and  is  known  or  suspected  by  the  person  with  whom  he  deals, 
to   be  a   fraud   upon   the   principal. 

History:     Enacted  March  21,  1872. 

§2307.  CREATION  OF  AGENCY.  An  agency  may  be 
created,  and  an  authority  may  be  conferred,  by  a  precedent 
authorization  or  a  subsequent  ratification. 

History:     Enacted  March  21,  1872. 

§2308.  CONSIDERATION  UNNECESSARY.  A  con- 
sideration is  not  necessary  to  make  an  authority,  whether 
precedent   or  subsequent,  binding  upon   the   principal. 

Hi-story:     Enacted  March  21.  1872. 

§2309.  FORM  OF  AUTHORITY.  An  oral  authoriza- 
tion is  sufficient  for  any  purpose,  except  that  an  authority 
to  enter  into  a  contract  required  by  law  to  be  in  writing  can 
only  be  given  by  an  instrument  in  writing. 

History:      Enacted  March   21,   1S72. 

§2310.  RATIFICATION  OF  AGENT'S  ACT.  A  ratifi- 
cation can  be  made  only  in  the  manner  that  would  have  been 
necessary  to  confer  an  original  authority  for  the  act  ratified, 
or  where  an  oral  authorization  would  suffice,  by  accepting" 
or  retaining  the  benefit  of  the  act,  w'ith  notice  thereof. 

Hi-story:     Enacted  March  21,  1872. 

778 


Tit.IX.ch.I.art.lT.l  nATIFTCATTON.  S§  231 1-2316 

§2311.  RATIFICATION  OF  PART  OF  A  TRANSAC- 
TION. Ratification  of  part  of  an  indivisible  transaction  is 
a  ratification  of  the  whole. 

History:     Enacted  March  21,  1872. 

§2312.  WHEN  RATIFICATION  VOID.  A  ratification 
is  not  valid  unless,  at  the  time  of  ratifying  the  act  done,  the 
principal  has  power  to  confer  authoritj'  for  such  an  act. 

Hi.story:     Enacted  March  21,  1S72. 

§  2313.  RATIFICATION  NOT  TO  WORK  INJURY  TO 
THIRD  PERSONS.  Xo  unauthorized  act  can  be  made 
valid,  retroactively,  to  the  prejudice  of  third  persons,  without 
their  consent. 

History:     Enacted  March  21,  lcST2. 

§2314.  RESCISSION  OF  RATIFICATION.  A  ratifica- 
tion may  be  rescinded  when  made  without  such  consent  as  is 
required  in  a  contract,  or  with  an  imperfect  knowledge  of 
the  material  facts  of  the  transaction  ratified,  but  not  other- 
wise. 

History:     Enacted  Marcli   21,  1872. 

§2315.     MEASURE     OF    AGENT'S    AUTHORITY.     An 

agent  has   such   authority  as  the  principal,  actually  or  osten- 
sibly, confers  upon  him. 

History:     Enacted  March  21,  1S72. 

§2316.  ACTUAL  AUTHORITY,  WHAT.  Actual  au- 
thority is  such  as  a  principal  intentionally  confers  upon  the 
agent,  or  intentionally,  or  by  want  of  ordinary  care,  allows 
the  agent  to  believe  himself  to  possess. 

History;     Enacted  March  21,  1872. 

779 


§§2317-2320  CIVIL  code.  [Div.III,Pt.IV. 

§2317.  OSTENSIBLE  AUTHORITY,  WHAT.  Osten- 
sible authority  is  such  as  a  principal,  intentionally  or  by 
want  of  ordinary  care,  causes  or  allows  a  third  person  to 
believe  the  agent  to  possess. 

History:     Enacted  March  21,  1872. 

§2318.  AGENT'S  AUTHORITY  AS  TO  PERSONS 
HAVING  NOTICE  OF  RESTRICTIONS  UPON  IT.  Ev- 
ery agent  has  actuallj^  such  authority  as  is  defined  by  this 
title,  unless  specially  deprived  thereof  by  his  principal,  and 
has  even  then  such  authority  ostensibly,  except  as  to  per- 
sons who  have  actual  or  constructive  notice  of  the  restriction 
upon  his  authority. 

History:     Enacted  March  21,  1872. 

§2319.     AGENT'S      NECESSARY      AUTHORITY.     An 

agent  has  authority: 

1.  To  do  everything  necessarj^  or  proper  and  usual,  in  the 
ordinary  course  of  business,  for  efifecting  the  purpose  of  his 
agency;  and, 

2.  To  make  a  representation  respecting  any  matter  of  fact, 
not  including  the  terms  of  his  authority,  but  upon  which  his 
right  to  use  his  authority  depends,  and  the  truth  of  which 
cannot  be  determined  by  the  use  of  reasonable  diligence  on 
the  part  of  the  person  to  whom  the  representation  is  made. 

History:     Enacted  March  21,  1872. 

§2320.  AGENT'S  POWER  TO  DISOBEY  INSTRUC- 
TIONS. An  agent  has  power  to  disobey  instructions  in 
dealing  with  the  subject  of  the  agenc5%  in  cases  where  it  is 
clearly  for  the  interest  of  his  principal  that  he  should  do  so, 
and  there  is  not  time  to  communicate  with  the  principal. 

History:     Enacted  March  21,  1872. 

780 


Tit.IX.ch.I.art.IL]    AUTHORITY— EXCEPTIONS.     §§2321-2325 

§2321.  AUTHORITY  TO  BE  CONSTRUED  BY  ITS 
SPECIFIC,  RATHER  THAN  BY  ITS  GENERAL  TERMS. 

When  an  authority  is  given  partly  in  general  and  partly  in 
specific  terms,  the  general  authority  gives  no  higher  powers 
than  those  specifically  mentioned. 

History:     Enacted  March  21,  1S72. 

§2322.     EXCEPTIONS    TO    GENERAL    AUTHORITY. 

An  authority  expressed  in  general  terms,  however  broad,  does 
not  authorize  an  agent: 

1.  To  act  in  his  own  name,  unless  it  is  the  usual  course  of 
business  to  do  so; 

2.  To  define  the  scope  of  his  agency;  or, 

3.  To  do  any  act  which  a  trustee  is  forbidden  to  do  by 
article  two,  chapter  one,  of  the  last  title. 

History:     Enacted  March  21,  1ST2. 

§2323.  WHAT  INCLUDED  IN  AUTHORITY  TO 
SELL  PERSONAL  PROPERTY.  An  authority  to  sell  per- 
sonal property  includes  authority  to  warrant  the  title  of  the 
principal,  and  the  quality  and  quantity  of  the  property. 

History:     Enacted  March  21,  1872. 

§2324.  WHAT  INCLUDED  IN  AUTHORITY  TO 
SELL  REAL  PROPERTY.  An  authority  to  sell  and  con- 
vey real  property  includes  authority  to  give  the  usual  cov- 
enants of  warranty. 

History:     Enacted  March  21,  1872. 

§2325.  AUTHORITY  OF  GENERAL  AGENT  TO  RE- 
CEIVE PRICE  OF  PROPERTY.  A  general  agent  to  sell, 
who  is  intrusted  by  the  principal  with  the  possession  of  the 
thing  sold,  has  authority  to  receive  the  price. 

History:     Enacted  March  21,  1872. 

781 


§2326  OTVIT.  CODE.  fDiv.ni.Pt.IV. 

§2326.  AUTHORITY  OF  SPECIAL  AGENT  TO  RE- 
CEIVE PRICE.  A  special  agent  to  sell  has  authority  to 
receive  the  price  on  delivery  of  the  thing  sold,  but  not  after- 
wards. 

History:     Enacted  March  21,  1872. 


782 


Tit.IX,ch.l,art.III.J         obligations.  §§2330,2331 


ARTICLE  III. 

MUTUAL  OBLIGATIONS  OF  PRINCIPALS  AND  THIKD 
PERSONS. 

§  2330.  Principal,  liow  affected  hj-  act.s  of  agent  williin  the 
.scope   of  his  authority. 

§  2331.  Principal,  when  bound  by  incomplete  e,\ei-ution  of  au- 
thority. 

§  2332.      Notice   to   agent,    when   notice  to  principal. 

§  2333.     Obligation    of  principal    when    agent    exceeds   authority. 

§  2334.     For  acts  done  under  a  merely  ostensible  authority. 

§  2335.     When  exclusive   credit   is   given    to   agent. 

§  2336.  Rights  of  person  who  deals  with  agent  without  knowl- 
edge of  agency. 

§  2337.     Instrument  intended  to  bind  principal  does  bind  him. 

§  2338.  Principal's  responsibility  for  agent's  negligence  or 
omission. 

§  2339.  Principal's  responsibility  for  wrongs  wilfully  commit- 
ted by  the  agent. 


§2330.     PRINCIPAL,  HOW  AFFECTED  BY  ACTS  OF 
AGENT  WITHIN  THE  SCOPE   OF  HIS  AUTHORITY. 

An  agent  represents  his  principal  for  all  purposes  within  the 
scope  of  his  actual  or  ostensible  authority,  and  all  the  rights 
and  liabilities  which  would  accrue  to  the  agent  from  trans- 
actions within  sucli  limit,  if  they  had  l)een  entered  into  on 
his  own  account,  accrue  to  the  principal. 

History:     Enacted  March  21,   1S72. 


§233L  PRINCIPAL,  WHEN  BOUND  BY  INCOM- 
PLETE EXECUTION  OF  AUTHORITY.  A  principal  is 
l)ound  by  an  incomplete  execution  of  an  authority,  when  it 
is  consistent  with  the  whole  purpose  and  scope  thereof,  but 
not  otherwise. 

History:     Enacted  March  21,   1872. 

783 


§§2332-2336  civil  code.  [Div.III,Pt.IV. 

§2332.  NOTICE  TO  AGENT,  WHEN  NOTICE  TO 
PRINCIPAL.  As  against  a  principal,  both  principal  and 
agent  are  deemed  to  have  notice  of  whatever  either  has  no- 
tice of,  and  ought,  in  good  faith  and  the  exercise  of  ordinary 
care  and  diligence,  to  communicate  to  the  other. 

History:     Enacted  March  21,  1872. 

§2333.  OBLIGATION  OF  PRINCIPAL  WHEN 
AGENT  EXCEEDS  HIS  AUTHORITY.  When  an  agent 
exceeds  his  authority,  his  principal  is  bound  by  his  authorized 
acts  so  far  only  as  they  can  be  plainly  separated  from  those 
which  are  unauthorized. 

History:     Enacted  March  21,  1872. 

§2334.  FOR  ACTS  DONE  UNDER  A  MERELY  OS- 
TENSIBLE AUTHORITY.  A  principal  is  bound  by  acts  of 
his  agent,  under  a  merely  ostensible  authority,  to  those  per- 
sons only  who  have  in  good  faith,  and  without  want  of  or- 
dinary care,  incurred  a  liability  or  parted  with  value,  upon 
the  faith  thereof. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  415.  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   21,   1905,  Stats,   and  Amdts.   1905,  p.   616. 

§2335.  WHEN  EXCLUSIVE  CREDIT  IS  GIVEN  TO 
AGENT.  If  exclusive  credit  is  given  to  an  agent  by  the 
person  dealing  with  him,  his  principal  is  exonerated  by  pay-^ 
ment  or  other  satisfaction  made  by  him  to  his  agent  in  good 
faith,  before  receiving  notice  of  the  creditor's  election  to 
hold  him  responsible. 

History:     Enacted  March  21,  1872. 

§2336.  RIGHTS  OF  PERSON  WHO  DEALS  WITH 
AGENT  WITHOUT  KNOWLEDGE  OF  AGENCY.     One 

784 


Tit.IX,ch.I,art.III.J      RESPONSIBILITY.  §§2337-2339 

who  deals  with  an  agent  without  knowing  or  having  reason 
to  believe  that  the  agent  acts  as  such  in  the  transaction,  may 
set  ofif  against  any  claim  of  the  principal  arising  out  of  the 
same,  all  claims  which  he  might  have  set  off  against  the 
agent  before  notice  of  the  agency. 

History:     Enacted  March  21,  1872. 

§2337.  INSTRUMENT  INTENDED  TO  BIND  PRIN- 
CIPAL DOES  BIND  HIM.  An  instrument  within  the  scope 
of  his  authority  by  which  an  agent  intends  to  bind  his  prin- 
cipal, does  bind  him  if  such  intent  is  plainly  inferable  from 
the   instrument  itself. 

History:     Enacted  March  21,  1S72. 

§2338.  PRINCIPAL'S  RESPONSIBILITY  FOR 
AGENT'S  NEGLIGENCE  OR  OMISSION.  Unless  re- 
quired by  or  under  the  authority  of  law  to  employ  that  par- 
ticular agent,  a  principal  is  responsible  to  third  persons  for 
the  negligence  of  his  agent  in  the  transaction  of  the  busi- 
ness of  the  agency,  including  wrongful  acts  committed  by 
such  agent  in  and  as  a  part  of  the  transaction  of  such  busi- 
ness, and  for  his  wilful  omission  to  fulfil  the  obligations  of 
the  principal. 

History:     Enacted  March  21,  1872. 

§2339.  PRINCIPAL'S  RESPONSIBILITY  FOR 
WRONGS  WILFULLY  COMMITTED  BY  THE  AGENT. 

A  principal  is  responsible  for  no  other  wrongs  committed  by 
his  agent  than  those  mentioned  in  the  last  section,  unless  he 
has  authorized  or  ratified  them,  even  though  they  are  com- 
mitted while  the  agent  is  engaged  in  his  service. 

History:     Enacted  March  21,  1872. 


785 


§§2342-2344  cjvil  code.  [Div.ll  l.Pt.l  V. 


ARTICLE  IV. 

OBLIGATIONS    OF   AGENTS    TO    THIKD    PERSONS. 

§  2342.      Warranty  of  authority. 
§  234.S.     Agent's  responsibility   to   tliird  person.s. 
§  2344.     Obligation  of  agent  to  surrender  property   to   third  per- 
son. 
§  2345.     Agent  not  liaving  capacity  to  contract. 

§2342.  WARRANTY  OF  AUTHORITY.  One  who  as- 
sumes to  act  as  an  agent  thereby  warrants,  to  all  who  deal 
with  him  in  that  capacity,  that  he  has  the  authority  which 
he   assumes. 

History:     Enacted  March  21,  1872. 

§2343.  AGENT'S  RESPONSIBILITY  TO  THIRD 
PERSONS.  One  who  assumes  to  act  as  an  agent  is  respon- 
sible to  third  persons  as  a  principal  for  his  acts  in  the  course 
of  his  agency,  in  any  of  the  following  cases,  and  in  no  others: 

1.  When,  with  his  consent,  credit  is  given  to  him  person- 
ally in  a  transaction; 

2.  When  he  enters  into  a  written  contract  in  the  name  of 
his  principal,  without  believing,  in  good  faith,  that  he  has 
authority  to  do  so;  or, 

3.  When  his  acts  are  wrongful  in  their  nature. 

History:     Enacted  March  21,  1872. 

§2344.  OBLIGATION  OF  AGENT  TO  SURRENDER 
PROPERTY  TO  THIRD  PERSON.  If  an  agent  receives 
anything  for  the  benefit  of  his  principal,  to  the  possession 
of  which  another  person  is  entitled,  he  must,  on  demand, 
surrender  it  to  such  person,  or  so  much  of  it  as  he  has  un- 
der his  control  at  the  time  of  demand,  on  being  indemnified 

786 


Til.lX.ch.I.art.IV.I       rONTRACTS  OF  AGENT.  §2345 

for  any  advance  which  he  has  made  to  his  principal,  in  good 
faith,  on  account  of  the  same;  and  is  responsible  therefor, 
if,  after  notice  from  the  owner,  he  delivers  it  to  his  principal. 

HiMtory:     Enacted  March  21,  1S72. 

§2345.  AGENT  NOT  HAVING  CAPACITY  TO  CON- 
TRACT. The  provisions  of  this  article  are  subject  to  the 
provisions  of  part   one,   division   first,   of   this   code. 

HLstory:     Enacted  March  21,  1872. 


787 


§§2349-2351  civil  code.  [Div.III,Pt.IV. 


ARTICLE  V. 

DELEGATION  OF  AGENCY. 

§  2349.     Agent's  delegation  of  his  powers. 

§  2350.     Agent's   unautliorized   employment  of  subagent. 

§  2351.     Subagent    rightfully   appointed   represents    principal. 

§2349.     AGENT'S    DELEGATION    OF    HIS    POWERS. 

An  agent,  unless  specially  forbidden  by  his  principal  to  do 
so,  can  delegate  his  powers  to  another  person  in  any  of  the 
following  cases,  and  in  no  others: 

1.  When  the  act  to  be  done  is  purely  mechanical; 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the 
subagent  can  lawfully  perform; 

3.  When  it  is  the  usage  of  the  place  to  delegate  such  pow- 
ers; or, 

4.  When  such  delegation  is  specially  authorized  by  the 
principal. 

History;     Enacted  March  21,  1S72. 

§2350.  AGENT'S  UNAUTHORIZED  EMPLOYMENT 
OF  SUBAGENT.  If  an  agent  employs  a  subagent  without 
authority,  the  former  is  a  principal  and  the  latter  his  agent, 
and  the  principal  of  the  former  has  no  connection  with  the 
latter. 

History:     Enacted  March  21,  1S72. 

§235L  SUBAGENT  RIGHTFULLY  APPOINTED 
REPRESENTS  PRINCIPAL.  A  subagent,  lawfully  ap- 
pointed, represents  the  principal  in  like  manner  with  the  or- 
iginal agent;  and  the  original  agent  is  not  responsible  to 
third  persons  for  the  acts  of  the  subagent. 

History:     Enacted  March  21,  1872. 


788 


Tit.IX,ch.I,art.VI.]         termination.  §§2355,2356 


ARTICLE  VI. 

TERMINATION  OF  AGENCY. 

§  2355.      Termination  of  ag^ency. 

§  2356.      Same.      [Where    coupled   with   an    interest.] 

§2355.  TERMINATION  OF  AGENCY.  An  agency  is 
terminated,  as  to  every  person  having  notice  thereof,  by: 

1.  The  expiration  of  its  term; 

2.  The   extinction  of  its   subject; 

3.  The  death  of  the  agent; 

4.  His  renunciation  of  the  agency;  or, 

5.  The  incapacity  of  the  agency  [agent]  to  act  as  such. 

History:     Enacted  March  21,  1872. 

§2356.  SAME.  [WHERE  COUPLED  WITH  AN  IN- 
TEREST.] Unless  the  power  of  an  agent  is  coupled  with  an 
interest  in  the  subject  of  the  agency,  it  is  terminated,  as  to 
every  person  having  notice  thereof,  by; 

1.  Its  revocation  by  the  principal; 

2.  His  death;  or, 

3.  His  incapacity  to  contract. 

History:      Enacted  March   21,   1872. 


789 


§2362  <Mvii.  C(jdr  [Div.m.Pt.IV. 


CHAPTER  II. 

PARTICULAR  AGENCIES. 

Article     I.  Auctioneers,  §§2362,  2363. 

II.  Factors,  §§2367-2369. 

III.  Shipmasters  and  pilots,  §§2373-2385. 

IV.  Ships'  managers,  §§2388,  2389. 


ARTICLE  I. 

AUCTIONEERS. 

§  2362.     Auctioneer's  authority  from  the  seller. 
§  236.'?.     Auctioneer's  authority  from  the  bidder. 

§2362.  AUCTIONEER'S  AUTHORITY  FROM  THE 
SELLER.  An  auctioneer,  in  the  abseqce  of  special  authori- 
zation or  usage  to  the  contrar^^  has  authority  from  the, seller, 
only  as  follows: 

1.  To  sell  by  public  auction  to  the  highest  bidder; 

2.  To  sell  for  cash  only,  except  such  articles  as  are  usually 
sold  on  credit  at  auction; 

3.  To  warrant,  in  like  manner  with  other  agents  to  sell,  ac- 
cording to  section  twenty-three  hundred  and  twenty-three; 

4.  To  prescribe  reasonable  rules  and  terms  of  sale; 

5.  To  deliver  the  thing  sold,  upon  payment  of  the  price; 

6.  To  collect  the  price;  and, 

7.  To  do  whatever  else  is  necessary,  or  proper  and  usual, 
in  the  ordinary  course  of  business,  for  effecting  these  pur- 
poses. 

History:     Enacted  March  21.  J.S72. 

790 


Tit.IX,ch.lI.art.I.]  AUTHORITY.  §2363 

§2363.     AUCTIONEER'S    AUTHORITY     FROM     THE 

BIDDER.  An  auctioneer  has  authority  from  a  bidder  at 
the  auction,  as  well  as  from  tlie  seller,  to  bind  both  by  a 
memorandum  of  the  contract,  as  i)rescril)ed  in  the  title  on 
sale. 

Histor.v:     Enacted  Maix-li   L'l,  1S72. 


791 


§§2367-2369  civil  code.  [Div.III.Pt.IV. 


ARTICLE  II. 

FACTORS. 

§  2367.     Factor,  what. 

§  236S.     Actual  authority  of  factor. 

§  2369.     Osten.sible  authority. 

§2367.  FACTOR,  WHAT.  A  factor  is  an  agent,  as  de- 
fined b}^  section  two  thousand  and  twenty-six. 

History:     Enacted  March  21.  1S72. 

§2368.  ACTUAL  AUTHORITY  OF  FACTOR.  In  addi- 
tion to  the  authority  of  agents  in  general,  a  factor  has  actual 
authority  from  his  principal,  unless  specially  restricted: 

1.  To  insure  property  consigned  to  him  uninsured; 

2.  To  sell,  on  credit,  anything  intrusted  to  him  for  sale, 
except  such  things  as  it  is  contrary  to  usage  to  sell  on  credit; 
but  not  to  pledge,  mortgage,  or  barter  the  same;  and, 

3.  To  delegate  his  authority  to  his  partner  or  servant,  but 
not  to  anj^  person  in  an  independent  employment. 

History:     Enacted  March  21,  1S72. 

§2369.  OSTENSIBLE  AUTHORITY.  A  factor  has  os- 
tensible authority  to  deal  with  the  property  of  his  principal 
as  his  own,  in  transactions  with  persons  not  having  notice  of 
the  actual  ownership. 

History:     Enacted  March  21,  1872. 


792 


Tit.IX,ch.II,art.III.]        AUTHORITY.  §§2373-2375 


ARTICLE  III. 

SHIPMASTERS  AND  PILOTS. 

§  2373.  Authority  of  shipmaster  on  behalf  of  ship-owner. 

§  2374.  Authority  to  borrow. 

§  2375.  Authority  on  behalf  of  owners  of  cargo. 

§  2376.  Power  to  make  contracts. 

§  2377.  Power  to  hypothecate. 

§  2378.  Master's  power  to  sell  ship. 

§  2379.  Master's  power  to  sell  cargo. 

§  2380.  Authority  to  ransom  ship. 

§  2381.  Abandonment   terminates   master's  power. 

§  2382.  Personal  liability   for  contracts  concerning  the  ship. 

§  2383.  Liability  for  acts  of  persons  employed  upon  the  ship. 

§  2384.  Responsibility    for    negligence    of    pilot. 

§  2385.  Ship-owner's  liability  for  cargo  sold,  etc. 

§2373.  AUTHORITY  OF  SHIPMASTER  ON  BEHALF 
OF  SHIP-OWNER.  The  master  of  a  ship  is  a  general  agent 
for  its  owner  in  all  matters  concerning  the  same. 

History:     Enacted  March  21,  1872. 

§2374.  AUTHORITY  TO  BORROW.  The  master  of  a 
ship  has  authority  to  borrow  money  on  the  credit  of  its 
owner,  if  it  is  necessary  to  enable  him  to  complete  the  voy- 
age, and  if  neither  the  owner  nor  his  proper  agent  for  such 
matters  can  be  consulted  without  injurious  delay. 

HLstory:     Enacted  March  21,  1872. 

§2375.  AUTHORITY  ON  BEHALF  OF  OWNERS  OF 
CARGO.  The  master  of  a  ship,  during  a  voyage,  is  a  gen- 
eral agent  for  each  of  the  owners  of  the  cargo,  and  has  au- 
thority to  do  whatever  they  might  do  for  the  preservation  of 
their  respective  interests,  but  he  cannot  sell  or  hypothecate 
the  cargo,  except  in  the  cases  mentioned  in  this  article. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code  Amdts.  1873-4,  p.  251. 

793 


B  2376-2379  civil  code.  [Div.II  l.Pt.l  V. 

§2376.  POWER  TO  MAKE  CONTRACTS.  The  master 
of  a  ship  may  procure  all  its  necessary  repairs  and  supplies, 
may  engage  cargo  and  passengers  for  carriage,  and,  in  a  for- 
eign port,  may  enter  into  a  charter  part}';  and  his  contracts 
for  these  purposes  bind  the  owner  to  the  full  amount  of  the 
value  of  the  ship  and  freightage. 

History;     Enacted  March  21.  1S72. 

§2377.  POWER  TO  HYPOTHECATE.  The  master  of 
a  ship  may  hypothecate  the  ship,  freightage,  and  cargo,  and 
sell  part  of  the  cargo,  in  the  cases  prescribed  by  the  chapters 
on  bottomry  and  respondentia,  and  in  no  others,  except  that 
the  master  may  also  sell  the  cargo,  or  any  part  of  it,  short 
of  the  port  of  destination,  if  found  to  be  of  such  perishable 
nature,  or  in  such  damaged  condition  that  if  left  on  board 
or  reshipped  it  would  be  entirely  lost,  or  would  seriously  en- 
danger the  interests  of  its  owners. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1S74, 
Code  Amdts.   1S73-4,  p.   252. 

§2378.  MASTER'S  POWER  TO  SELL  SHIP.  When  a 
ship,  whether  foreign  or  domestic,  is  seriously  injured,  or 
the  voyage  is  otherwise  broken  up,  beyond  the  possibility 
of  pursuing  it,  the  master,  in  case  of  necessity,  may  sell  the 
ship  without  instructions  from  the  owners,  unless  by  the 
earliest  use  of  ordinary  means  of  communication  he  can  in- 
form the  owners,  and  await  their  instructions. 

Hiistory:     Enacted  March  21.  1S72. 

§2379.     MASTER'S    POWER    TO   SELL   CARGO.     The 

master  of  a  ship  may  sell  the  cargo,  if  the  voyage  is  broken 
up  beyond  the  possibility  of  pursuing  it,  and  no  other  ship 
can  be  obtained  to  carry  it  to  its  destination,  and  the  sale 
is  otherwise  absolutely  necessary. 

History:     Enacted  March  21.  1872. 

794 


Tit.IX.ch.Il.art.lIL]     ABANDONMENT.     ,  §§2380-2384 

§2380.  AUTHORITY  TO  RANSOM  SHIP.  The  mas- 
ter of  a  ship,  in  case  of  its  capture,  may  engage  to  pay  a  ran- 
som for  it,  in  money  or  in  part  of  the  cargo,  and  his  engage- 
ment will  bind  the  ship,  freightage,  and  cargo. 

History:     Enacted  March  21,  1872. 

§2381.     ABANDONMENT    TERMINATES     MASTER'S 

POWER.  The  power  of  the  master  of  a  ship  to  hind  its 
owner,  or  the  owners  of  the  cargo,  ceases  upon  the  abandon- 
ment of  the  ship  and  freightage  to  insurers. 

History:     Enacted  March  21,  1872. 

§2382.  PERSONAL  LIABILITY  FOR  CONTRACTS 
CONCERNING  THE  SHIP.  Unless  otherwise  expressly 
agreed,  or  unless  the  contracting  parties  give  exclusive  credit 
to  the  owner,  the  master  of  a  ship  is  personally  liable  upon 
his  contracts  relative  thereto,  even  when  the  owner  is  also 
liable. 

Hi.story:     Enacted  March  21,   1872. 

§2383.  LIABILITY  FOR  ACTS  OF  PERSONS  EM- 
PLOYED UPON  THE  SHIP.  The  master  of  a  ship  is 
liable  to  third  persons  for  the  acts  or  negligence  of  persons 
employed  in  its  navigation,  whether  appointed  by  him  or  not, 
to  the  same  extent  as  the  owner  of  the  ship. 

History:      Enacted    March    21,    1872. 

§2384.     RESPONSIBILITY     FOR     NEGLIGENCE     OF 

PILOT.  The  owner  or  master  of  a  shij)  is  not  responsible 
tor  the  negligence  of  a  pilot  whom  ho  is  bound  by  law  to  em- 
l)loy;  but  if  he  is  allowed  an  option  between  pilots,  some  of 
whom  are  competent,  or  is  required  only  to  pay  compensa- 
tion to  a  pilot,  whether  he  employs  him  or  not,  he  is  so  re- 
sponsible to  third  persons. 

History:     Enacted  March  2  1,   1872. 

795 


§2385  CIVIL  CODE.  [Div.III.Pt.IV. 

§2385.  SHIP-OWNER'S  LIABILITY  FOR  CARGO 
SOLD,  ETC.  The  owner  of  a  ship  is  bound  to  pay  to  the 
owner  of  her  cargo  the  market  value  at  the  time  of  arrival 
of  the  ship  at  the  port  of  her  destination,  of  that  portion  of 
her  cargo  which  has  been  sold  to  enable  the  master  to  pay 
the  necessary  repairs  and  supplies  of  the  ship. 

History:      Enacted  March   30,   1S74,  Code  Amdts.    1873-4,  p.   252. 


796 


Tit.IX,ch.II,art.IV.]      manager— POWERS.  §§2388,2389 


ARTICLE  IV. 

SHIPS'  MANAGERS. 

§  2388.     What  powers  manager  has. 
§  2389.     What  powers  he  has  not. 

§2388.  WHAT  POWERS  MANAGER  HAS.  A  ship's 
manager  has  power  to  make  contracts  requisite  for  the  per- 
formance of  his  duties  as  such;  to  enter  into  charter  parties, 
or  make  contracts  for  carriage;  and  to  settle  for  freightage 
and  adjust  averages. 

History:     Enacted  March  21,  1872. 

§  2389.  WHAT  POWERS  HE  HAS  NOT.  Without  spe- 
cial authority  a  ship's  manager  cannot  borrow  money  or  give 
up  the  lien  for  freightage,  or  purchase  a  cargo,  or  bind  the 
owners  of  the  ship  to  an  insurance. 

History:     Enacted  March  21,   1872. 


TITLE  X. 

PARTNERSHIP. 

Chapter     I.  Partnership  in   General.   §§  2395-2418. 

II.  General  Partnership,  §§2424-2471. 

III.  Special  Partnership,  §§2477-2510. 

IV.  Mining  Partnership,  §§2511-2520. 


191 


§§2395-2397  civil  code.  IDiv.l  ll.Pt.IV. 


CHAPTER  I. 

PARTNERSHIP  IN  GEXERAL. 

Article     I.  What  Constitutes  a  Partnership.  §§  2395-2397. 

II.  Partnership  Property,  §§2401-2406. 

III.  Mutual   Obligations  of  Partners,   §§2410-2413. 

IV.  Renunciation  of  Partnership.  §§2417-2418. 


ARTICLE   L 

WHAT   CONSTITUTES  A   PARTNERSHIP. 

§  239.5.      Partnership,  what. 

§  2396.      Ship-owners. 

§  2397.      Formation  of  partnersliip. 

§2395.  PARTNERSHIP,  WHAT.  Partnership  is  the 
association  of  two  or  more  persons,  for  the  purpose  of  carrj'- 
ing  on  business  together,  and  dividing  its  profits  between 
them. 

Historj-:     Enacted  March  21,   1872. 

§2396.  SHIP-OWNERS.  Part  owners  of  a  ship  do  not, 
by  simply  using  it  in  a  joint  enterprise,  become  partners  as 
to  the  ship. 

HLstory:      Enacted  March  21,   1872. 

§2397.  FORMATION  OF  PARTNERSHIP.  A  partner- 
ship can  be  formed  only  I)y  the  consent  of  all  the  parties 
thereto,  and  therefore  no  new  partner  can  be  admitted  into 
a  partnership  without  the  consent  of  every  existing  member 
thereof. 

History:     Enacted  March  21,   1S72. 

798 


Tit.X.ch.l.art.lI.l     PROPERTY— PU(iI''TTS.  §§2401-2404 


ARTICLE  II. 

PARTNERSHIP  PROPERTY. 

§  2401.  Partnership  property,   \vhat. 

§  2402.  Partner's   interest   in  partnersliip   property. 

§  2403.  Partner's  share  in  profits  and  losses. 

§  2404.  Wlien   division   of  losses   implied. 

§  2405.  Partner    may    require    application    of    partnership    prop- 
erty to  payment  of  debts. 

S  2406.  \Yhat  property  is  partnership   property   b\-   presumption. 

§2401.     PARTNERSHIP      PROPERTY,      WHAT.      The 

propert}'  of  a  partner.ship  consists  of  all  that  is  contributed 
to  the  common  stock  at  the  formation  of  the  partnership, 
and   all   that   is   subsequently   acquired   thereby. 

History:     Enacted  March  21.  1S72. 

§2402.  PARTNER'S  INTEREST  IN  PARTNERSHIP 
PROPERTY.  The  interest  of  each  member  of  a  partnership 
extends  to  every  portion  of  its  property. 

History:     Enacted  March   21.   1>nT2. 

§2403.     PARTNER'S      SHARE      IN      PROFITS      AND 

LOSSES.  In  the  absence  of  anj-  agreement  on  the  subject 
the  shares  of  partners  in  the  profit  or  loss  of  the  business 
are  equal,  and  the  share  of  each  in  the  partnership  property 
is  the  value  of  his  original  contribution,  increased  or  dimin- 
ished by  his  share  of  profit  or  loss. 

History:     Enacted  March  21,  1872. 

§2404.     WHEN  DIVISION  OF  LOSSES  IMPLIED.     An 

agreement  to  divide  the  profits  of  a  business  implies  an 
agreement  for  a  corresponding  division  of  its  losses,  unless 
it  is  otherwise  expressly  stipulated. 

History:     Enacted  March  21,  1872. 

799 


§§2405,2406  civil  code.  [Div.III,Pt.IV. 

§2405.  PARTNER  MAY  REQUIRE  APPLICATION 
OF  PARTNERSHIP  PROPERTY  TO  PAYMENT  OF 
DEBTS.  Each  member  of  a  partnership  may  require  its 
property  to  be  applied  to  the  discharge  of  its  debts,  and  has 
a  lien  upon  the  shares  of  the  other  partners  for  this  purpose, 
and  for  the  payment  of  the  general  balance  if  any  due  to  him. 

History:     Enacted  March  21,  1872. 

§2406.  WHAT  PROPERTY  IS  PARTNERSHIP 
PROPERTY  BY  PRESUMPTION.  Property,  whether  real 
or  personal,  acquired  with  partnership  funds,  is  presumed  to 
be  partnership  property. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  415,  held 
unconstitutional,  see  history,  §  4  ante. 


800 


Tit.X.ch.I.art.lII.]  OBLIGATIONS.  §§2410-2412 


ARTICLE  111. 

MUTUAL  OBLIGATION  OF  PARTNERS. 

§  2410.  Partners  trustees  for  each  other. 

§  2411.  Good  faith  to  be  observed  between  them. 

§  2412.  Mutual  liability  of  partners  to  account. 

§  2411^.  No  compensation  for  services  to  firm. 

§2410.     PARTNERS  TRUSTEES  FOR  EACH  OTHER. 

The  relations  of  partners  are  confidential.  They  are  trustees 
for  each  other  within  the  meaning  of  chapter  one  of  the  title 
on  trusts,  and  their  obligations  as  such  trustees  are  defined 
by  that  chapter. 

History:     Enacted  March  21,  1872. 

§2411.  GOOD  FAITH  TO  BE  OBSERVED  BETWEEN 
THEM.  In  all  proceedings  connected  with  the  formation, 
conduct,  dissolution,  and  liquidation  of  a  partnership,  every 
partner  is  bound  to  act  in  the  highest  good  faith  toward  his 
copartners.  He  may  not  obtain  any  advantage  over  them  in 
the  partnership  affairs  by  the  slightest  misrepresentation, 
concealment,  threat,  or  adverse  pressure  of  any  kind. 

History:     Enacted  March  21,  1S72. 

§2412.  MUTUAL  LIABILITY  OF  PARTNERS  TO 
ACCOUNT.  Each  member  of  a  partnership  must  account 
to  it  for  everything  that  he  receives  on  account  thereof,  and 
is  entitled  to  reimbursement  therefrom  for  everything  that 
he  properly  expends  for  the  benefit  thereof,  and  to  be  in- 
demnified thereby  for  all  losses  and  risks  which  he  neces- 
sarily incurs  on  its  behalf. 

History:     Enacted  March  21,  1S72. 

-«  801 


§2413  CIVIL    CODE.  [Div.III.Pt.IV. 

§2413.  NO  COMPENSATION  FOR  SERVICES  TO 
FIRM.  A  partner  is  not  entitled  to  any  compensation  for 
services  rendered  by  him  to  the  partnership. 

History:     Enacted  March  21,  1872. 


802 


Tit.X,ch.I,art.IV.]  renunciation.  §§2417,2418 


ARTICLE  IV. 

RENUNCIATION  OF  PARTNERSHIP. 

§  2417.     Renunciation  of  future  profits  exonerates  from  liability. 
S  241S.     Effect    of   renunciation. 

§2417.  RENUNCIATION  OF  FUTURE  PROFITS  EX- 
ONERATES FROM  LIABILITY.  A  partner  may  exon- 
erate himself  from  all  future  liability  to  a  third  person,  on 
account  of  the  partnership',  by  renouncing,  in  good  faith,  all 
participation  in  its  future  profits,  and  giving  notice  to  such 
third  person,  and  to  his  own  copartners,  that  he  has  made 
such  renunciation,  and  that,  so  far  as  may  be  in  his  power, 
he  dissolves  the  partnership  and  does  not  intend  to  be  liable 
on  account  thereof  for  the  future. 

History:     Enacted  March  21,  1872. 

§2418.  EFFECT  OF  RENUNCIATION.  After  a  part- 
ner has  given  notice  of  his  renunciation  of  the  partnership, 
he  cannot  claim  any  of  its  subsequent  profits,  and  his  co- 
partners may  proceed  to  dissolve  the  partnership. 

History:     Enacted  March  21,  1872. 


803 


§2424  CIVIL  CODE.  [Div.lII.Pt.lV. 


CHAPTER  II. 

GENERAL  PARTNERSHIP. 

Article     I.  What  is  a  General  Partnership,  §2424. 

II.  Powers  and  Authority  of  Partners,  §§2428-2431. 

III.  Mutual  Obligations  of  Partners,  §§2435-2438. 

IV.  Liability  of  Partners,  §§2442-2445. 

V.     Termination  of  Partnership,  §§  2449-2454. 
VI.     Liquidation,  §§2458-2462. 
VII.     Of  the  Use  of  Fictitious  Names,  §§2466-2472. 


ARTICLE  I. 

WHAT  IS  A  GENERAL  PARTNERSHIP. 

§  2424.      General    partnership,    what. 

§2424.  GENERAL  PARTNERSHIP,  WHAT.  Every 
partnership  that  is  not  formed  in  accordance  with  the  law 
concerning  special  or  mining  partnerships,  and  every  special 
partnership,  so  far  only  as  the  general  partners  are  con- 
cerned, is  a  general  partnership. 

History:     Enacted  March  21,  1S72. 


804 


Tit.X,ch.lI.art.lI.]  AUTHORITY.  §§2428-2430 


ARTICLE  II. 

POWERS  AND  AUTHORITY  OF  PARTNERS. 

§  2428.  Power  of  majority  of  partners. 

§  2429.  Authority  of  Individual  partner. 

§  2430.  What  authority  partner  has  not. 

§  2431.  Partner's   acts   in    bad   faith,   when    ineffectual. 

§2428.     POWER     OF     MAJORITY     OF     PARTNERS. 

Unless  otherwise  expressly  stipulated,  the  decision  of  the 
majoritj'  of  the  members  of  a  general  partnership  binds  it 
in  the  conduct  of  its  business. 

History:     Enacted  March  21,  1872. 

§2429.     AUTHORITY    OF    INDIVIDUAL    PARTNER. 

Every  general  partner  is  agent  for  the  partnership  in  the 
transaction  of  its  business,  and  has  authority  to  do  whatever 
is  necessary  to  carry  on  such  business  in  the  ordinary  man- 
ner, and  for  this  purpose  may  bind  his  copartners  by  an 
agreement  in  writing. 

History:     Enacted  March  21,  1872. 

§2430.     WHAT  AUTHORITY    PARTNER    HAS    NOT. 

A  partner,  as  such,  has  not  authority  to  do  any  of  the  fol- 
lowing acts,  unless  his  copartners  have  wholl}'  abandoned 
the  business  to  him,  or  are  incapable  of  acting: 

1.  To  make  an  assignment  of  the  partnership  property  or 
any  portion  thereof  to  a  creditor,  or  to  a  third  person  in  trust 
for  the  benefit  of  a  creditor  or  of  all  creditors; 

2.  To  dispose  of  the  good  will  of  the  business; 

3.  To  dispose  of  the  whole  of  the  partnership  proi'erty  at 
once,  unless  it  consists  entirely  of  merchandise; 

805 


§2431  CIVIL  CODE.  [Div.III.Pt.IV. 

4.  To  do  any  act  which  would  make  it  impossible  to  carry 
on  the  ordinary  business  of  the  partnership; 

5.  To  confess  a  judgment; 

6.  To  submit  a  partnership  claim  to  arbitration; 

7.  To  do  any  other  act  not  within  the  scope  of  the  preced- 
ing section. 

History:     Enacted  March  21,  1872. 

§2431.  PARTNER'S  ACTS  IN  BAD  FAITH,  WHEN 
INEFFECTUAL.  A  partner  is  not  bound  by  any  act  of  a 
copartner,  in  bad  faith  toward  him,  though  within  the  scope  of 
the  partner's  powers,  except  in  favor  of  persons  who  have 
in   good   faith   parted   with   value   in   reliance   upon  such   act. 

History:     Enacted  March  21,  1872. 


806 


Tit.X,ch.II,art.III.]         OBLIGATIONS.  §§2435-2438 


ARTICLE  III. 

MUTUAL  OBLIGATIONS  OF  PARTNERS. 

§  2435.  Profits  of  individual  partner. 

§  2436.  In  what  business  partner  may  not  engage. 

§  2437.  In  wliat  he  may  engage. 

§  2438.  Must  account  to  firm  for  profits. 

§2435.     PROFITS    OF    INDIVIDUAL    PARTNER.     All 

profits  made  by  a  general  partner,  in  the  course  of  any  busi- 
ness usually  carried  on  by  the  partnership,  belong  to  the 
firm. 

History:     Enacted  March  21,  1872. 

§2436.  IN  WHAT  BUSINESS  PARTNER  MAY  NOT 
ENGAGE.  A  general  partner,  who  agrees  to  give  his  per- 
sonal attention  to  the  business  of  the  partnership,  may  not 
engage  in  any  business  v^rhich  gives  him  an  interest  adverse 
to  that  of  the  partnership,  or  w^hich  prevents  him  from  giv- 
ing to  such  business  all  the  attention  which  would  be  ad- 
vantageous to  it. 

History:     Enacted  March  21,  1872. 

§  2437.  IN  WHAT  HE  MAY  ENGAGE.  A  partner  may 
engage  in  any  separate  business,  except  as  otherwise  pro- 
vided by  the  last  two  sections. 

History:     Enacted  March  21,  1872. 

§2438.     MUST  ACCOUNT  TO  FIRM    FOR    PROFITS. 

A  general  partner  transacting  business  contrary  to  the  pro- 
visions of  this  article  may  be  required  by  any  copartner 
to  account  to  the  partnership  for  the  profits  of  such  busi- 
ness. 

History:     Enacted  Marcli  21,  1872. 

807 


§§2442-2445  oivii.  code.  IDiv.III.Pt.IV. 


ARTICLE  IV. 

LIABILITY  OF  PARTNERS. 

§  2442.  Liability   of  partners  to   third  person. 

§  2443.  Liability   for  each   other's  acts  as  agents. 

§  24  44.  Liability  of  one  held  out  as  partner. 

§  2445.  No  one  liable  as  partner  unless  held  out  as  such. 

§2442.  LIABILITY  OF  PARTNERS  TO  THIRD  PER- 
SONS. Every  general  partner  is  liable  to  third  persons  for 
all  the  obligations  of  the  partnership,  jointly  with  his  co- 
partners. 

History:     Enacted  March  21,  1872. 

§2443.  LIABILITY  FOR  EACH  OTHER'S  ACTS  AS 
AGENTS.  The  liability  of  general  partners  for  each  other's 
acts  is  defined  by  the  title  on  agency. 

History:     Enacted  March  21,  1872. 

§2444.  LIABILITY  OF  ONE  HELD  OUT  AS  PART- 
NER. Any  one  permitting  himself  to  be  represented  as  a 
partner,  general  or  special,  is  liable,  as  such,  to  third  persons 
to  whom  such  representation  is  communicated,  and  who,  on 
ihc  faith  thereof,  give  credit  to  the  partnership. 

History:     Enacted  March  21,  1872. 

§2445.  NO  ONE  LIABLE  AS  PARTNER  UNLESS 
HELD  OUT  AS  SUCH.  No  one  is  liable  as  a  partner  who 
is  not  such  in  fact,  except  as  provided  in  the  last  section. 

History:     Enacted  March  21.  1S72. 


808 


Tit.X.ch.Il.art.V.]         DISS0LUTI0NM)K.  §§2449-2451 


ARTICLE   V. 

TERMINATION    OF    PARTNERSHIP. 

S  2449.  Duiation  of  partnership. 

§  24.50.  Total  dissolution  of  partnership. 

§  2451.  Partial  dissolution. 

§  2452.  Partner  entitled  to  dissolution. 

§  2453.  Notice  of  termination. 

§  2454.  Notice  by  change  of  name. 

§2449.  DURATION  OF  PARTNERSHIP.  If  no  term 
is  prescribed  bj-  agreement  for  its  duration,  a  general  part- 
nership continues  until  dissolved  by  a  partner  or  by  operation 
of  law. 

HLsfory:     Enacted  March  2],  1S72. 

§2450.     TOTAL    DISSOLUTION    OF    PARTNERSHIP. 

A  general  partnership  is  dissolved  as  to  all  the  partners: 

1.  By  lapse  of  the  time  prescribed  by  agreement  for  its 
duration; 

2.  By  the  expressed  will  of  any  partner,  if  there  is  no  such 
agreement; 

3.  By  the  death  of  a  partner; 

4.  By  the  transfer  to  a  person,  not  a  partner,  of  the  inter- 
est of  any  partner  in  the  partnership  property; 

5.  By  v\'ar,  or  the  prohibition  of  commercial  intercourse 
between  the  country  in  which  one  partner  resides  and  that  in 
which  another  resides;  or, 

6.  By  a  judgment  of  dissolution, 

Hlsitorj':  Enacted  March  21.  1.S72:  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  19n0-l,  p.  415.  held 
nnconstitulional.   see  histni-y,   S  '   ante. 

§2451.  PARTIAL  DISSOLUTION.  .\  general  partner- 
ship may  be  dissolved,  as  to  himself  only,  by  the  expressed 

809 


§§2452,2453  civil  code.  [Div.III,Pt.IV. 

will  of  anj'  partner,  notwithstanding  his  agreement  for  its 
continuance,  subject,  however,  to  liability  to  his  copartners 
for  any  damage  caused  to  them  thereby,  unless  the  circum- 
stances are  such  as  entitle  him  to  a  judgment  of  dissolu- 
tion. 

History:     Enacted  March  21,  1872. 


§2452.     PARTNER  ENTITLED  TO  DISSOLUTION.    A 

general  partner  is  entitled  to  a  judgment  of  dissolution: 

1.  When  he,  or  another  partner,  becomes  legally  incapable 
of  contracting; 

2.  When  another  partner  fails  to  perform  his  duties  under 
the  agreement  of  partnership,  or  is  guilty  of  serious  mis- 
conduct; or, 

3.  When  the  business  of  the  partnership  can  be  carried  on 
only  at  a  permanent  loss. 

History:     Enacted  March  21,  1872. 


§2453.  NOTICE  OF  TERMINATION.  The  liability  of 
a  general  partner  for  the  acts  of  his  copartners  continues, 
even  after  a  dissolution  of  the  copartnership,  in  favor  of 
persons  who  have  had  dealings  with  and  given  credit  to  the 
partnership  during  its  existence,  until  they  have  had  personal 
notice  of  the  dissolution;  and  in  favor  of  other  persons 
until  such  dissolution  has  been  advertised  in  a  newspaper 
published  in  every  county  where  the  partnership,  at  the  time 
of  its  dissolution,  had  a  place  of  business,  if  a  newspaper 
is  there  published,  to  the  extent  in  either  case  to  which 
such  persons  part  with  value  in  good  faith,  and  in  the  belief 
that  such  partner  is  still  a  member  of  the  firm. 

History:     Enacted  March  21,  1872. 
810 


Tit.X,ch.II,art.V.]       CHANGE  OF   NAME.  §2454 

§2454.  NOTICE  BY  CHANGE  OF  NAME.  A  change 
of  the  partnership  name,  which  plainly  indicates  the  with- 
drawal of  a  partner,  is  sufificient  notice  of  the  fact  of  such 
withdrawal  to  all  persons  to  whom  it  is  communicated;  but 
a  change  in  the  name,  which  does  not  contain  such  an  indica- 
tion, is  not  notice  of  the  withdrawal  of  any  partner. 

History:     Enacted  March  21,  187  2. 


811 


§§2458-2461  <"TVli.  codr  |  Div.f  Il.Pt.IV. 


ARTICLE  VJ. 

LIQUIDATION. 
§  2458.     Powers  of  partners  after  dissolutinn. 
§  2459.     Who  may  act  In  liquidation. 
§  2460.     Wlio  may  not  act  in   liquidation. 
§  2461.     Powers  of  partners  in  liquidation. 
§  2462.     What  partner  may  do  in   liquidation. 

§2458.  POWERS  OF  PARTNERS  AFTER  DISSOLU- 
TION. After  the  dissolution  of  a  partnership,  the  powers 
and  authority  of  the  partners  are  such  only  as  are  prescribed 
by  this  article. 

History:     Enacted  March  21,  1S72. 

§  2459.  WHO  MAY  ACT  IN  LIQUIDATION.  Any  mem- 
ber of  a  general  partnership  may  act  in  liquidation  of  iis 
affairs,   except  as  provided   by   the   next   section. 

History:     Enacted  March  21,  1ST2. 


§2460.     WHO    MAY    NOT    ACT     IN     LIQUIDATION. 

If  the  liquidation  of  a  partnership  is  committed,  by  con- 
sent of  all  the  partners,  to  one  or  more  of  them,  the  others 
have  no  right  to  act  therein;  but  their  acts  are  valid  in 
favor  of  persons  parting  with  value,  in  good  faith  upon 
credit  thereof. 

History:     Enacted  March  21,  1872. 

§246L     POWERS  OF  PARTNERS  IN  LIQUIDATION. 

A  partner  authorized  to  act  in  liquidation  may  collect,  com- 
promise,   or   release   any    debts   due   to   the   partnership,   pay 

812 


Tit.X.ch.II.art.VI.]  LIQUIDATION.  §2462 

or    compromise    any    claims    against    it,    and    dispose    of    the 
partnership  propertj'. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion. Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  415.  held 
unconstitutional,  see  history,   §  4  ante. 

§2462.  WHAT  PARTNER  MAY  DO  IN  LIQUIDA- 
TION. A  partner  authorized  to  act  in  liquidation,  may  in- 
dorse, in  the  name  of  the  firm,  promissory  notes,  or  other 
obligations  held  by  the  partnership,  for  the  purpose  of  col- 
lecting the  same,  but  he  cannot  create  any  new  obligation 
in  its  name,  or  revive  a  debt  against  the  firm,  by  an  acknowl- 
edgment, when  an  action  thereon  is  barred  under  the  pro- 
visions of  the  Code  of  Civil  Procedure. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   252. 


813 


§§2466,2467  civil  code.  [Div.ITI.Pt.IV. 


ARTICLE  VII. 

OF  THE  USE  OF  FICTITIOUS  NAMES. 

§  2466.  Fictitious    names,   duties    of    those    using. 

§  2467.  Style  of  foreign  partnership. 

§  2468.  Certificates  of  partnership,  execution,   filing,   etc. 

§  2469.  Change  of  membership,  filing  new  certificate. 

§  2470.  Register  of  firms  to  be  Icept  by  county  clerk. 

§  2471.  Certified  copies  of  register,  and  proof  of  publication,   to 

be   evidence. 

§  2472.  Foreign    co-partnership,    designation    of    agent. 

§2466.  FICTITIOUS  NAMES,  DUTIES  OF  THOSE 
USING.  Except  as  otherwise  provided  in  the  next  section 
every  person  transacting  business  in  this  state  under  a 
fictitious  name  and  every  partnership  transacting  business 
in  this  state  under  a  fictitious  name,  or  a  designation  not 
showing  the  names  of  the  persons  interested  as  partners  in 
such  business,  must  file  with  the  clerk  of  the  county  in  which 
his  or  its  principal  place  of  business  is  situated,  a  cer- 
tificate, stating  the  name  in  full  and  the  place  of  residence 
of  such  person  and  stating  the  names  in  full  of  all  the  mem- 
bers of  such  partnership  and  their  places  of  residence.  Such 
certificate  must  be  published  once  a  week  for  four  successive 
weeks,  m  a  newspaper  published  in  the  county,  if  there  be 
one,  and  if  there  be  none  in  such  county,  then  in  a  newspaper 
in  an  adjoining  county. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  253;  March  23,  1911,  Stats,  and  Amdts. 
1911,  p.   440. 

§2467.     STYLE     OF     FOREIGN     PARTNERSHIP.     A 

commercial  or  banking  partnership,  established  and  trans- 
acting business  in  a  place  without  the  United  States,  may, 
without  filing  the  certificate  or  making  the  publication  pre- 

814 


Tit.X,ch.II,art.VII.]  CERTIFICATES  OF.  §2468 

scribed  in  the  last  section,  use  in  this  state  the  partnership 
name  used  by  it  there,  although  it  be  fictitious,  or  do  not 
show  the  names  of  the  persons  interested  as  partners  in  such 
business. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   253. 

§2468.  CERTIFICATES  OF  PARTNERSHIP,  EXECU- 
TION, FILING,  ETC.  The  certificate  filed  with  the  clerk 
as  provided  m  section  twenty-four  hundred  and  sixty -six 
must  be  signed  by  the  person  therein  referred  to,  or  by 
the  partners,  as  the  case  may  be,  and  acknowledged  before 
some  officer,  authorized  to  take  the  acknowledgment  of  con- 
veyances of  real  property.  Where  a  business  is  hereafter 
commenced  by  a  person  under  a  fictitious  name  or  a  partner- 
ship is  hereafter  formed,  the  certificate  must  be  filed  and 
the  publication  designated  in  that  section  must  be  made  with- 
in one  month  after  the  commencement  of  such  business,  or 
after  the  formation  of  the  partnership,  or  within  one  month 
from  the  time  designated  in  the  agreement  of  its  members 
for  the  commencement  of  the  partnership.  Where  the  busi- 
ness has  been  heretofore  conducted  under  a  fictitious  name 
or  where  the  partnership  has  been  heretofore  formed,  the 
certificate  must  be  filed  and  the  publication  made  within  six 
months  after  the  passage  of  this  act.  No  person  doing  busi- 
ness under  a  fictitious  name,  or  his  assignee  or  assignees, 
nor  any  persons  doing  business  as  partners  contrary  to  the 
provisions  of  this  article,  or  their  assignee  or  assignees, 
shall  maintain  any  action  upon  or  on  account  of  any  con- 
tract or  contracts  made,  or  transactions  had,  under  such 
fictitious  name,  or  in  their  partnership  name,  in  any  court 
of  this  state  until  the  certificate  has  been  filed  and  the  pub- 
lication has  been  made  as  herein  required. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  253;  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  416,  held  unconstitutional, 
see  Kerr's  Cyc.  C.  C.  §  4;  March  23,  1911,  Stats,  and  Amdts.  1911. 
p.  441. 

815 


§§2469-2472  civil  code.  [Div.IIl.Pt.IV. 

5^2469.  CHANGE  OF  MEMBERSHIP,  FILING  NEW 
CERTIFICATE.  On  every  change  in  the  members  of  a 
l^artnership  transacting  business  in  this  state  under  a  fictitious 
name,  or  a  designation  which  does  not  show  the  names 
of  the  persons  interested  as  partners  in  its  business,  except 
in  the  cases  mentioned  in  section  twenty-four  hundred  and 
sixty-seven,  a  new  certificate  must  be  filed  with  the  county 
clerk,  and  a  new  publication  made  as  required  by  this  article 
on  the  formation  of  such  partnership. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  254. 

§2470.  REGISTER  OF  FIRMS  TO  BE  KEPT  BY 
COUNTY  CLERK.  Every  county  clerk  must  keep  a  regis- 
ter of  the  names  of  firms  and  persons  mentioned  in  the  cer- 
tificates filed  with  him  pursuant  to  this  article,  entering  in 
alphabetical  order  the  name  of  every  such  person  who  does 
business  under  a  fictitious  name,  and  the  fictitious  name,  and 
the  name  of  every  such  partnership,  and  of  each  partner 
therein. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  254;  March  23,  1911,  Stats,  and  Amdts. 
1911,  p.  440. 

§247L  CERTIFIED  COPIES  OF  REGISTER,  AND 
PROOF  OF  PUBLICATION,  TO  BE  EVIDENCE.  Copies 
of  the  entries  of  a  county  clerk,  as  herein  directed,  when 
certified  by  him,  and  affidavits  of  publication,  as  herein 
directed,  made  by  the  printer,  publisher,  or  chief  clerk  of 
a  newspaper,  are  presumptive  evidence  of  the  facts  therein 
stated. 

lll.story:     Enacted  March  21,  1.S72. 

§  2472.    FOREIGN  CO-PARTNERSHIP,  DESIGNATION 

OF  AGENT.     Every  co-partnership,  other  than  those  men- 
tioned in  section  twenty-four  hundred  and  sixty-seven  of  this 

816 


Tit.X,ch.lI,art.V]I.]    DESIGNATING  AGENT.  §2472 

code,  domiciled  without  this  state,  and  having  no  regular 
place  of  business  within  this  state,  must,  within  forty  days 
from  the  time  it  commences  to  do  business  therein,  file  in 
the  office  of  the  secretary  of  state  a  designation  of  some 
person  residing  within  the  state  upon  whom  process  issued 
liy  authority  of  or  under  any  law  of  this  state,  may  be 
served.  A  copy  of  such  designation,  duly  certified  by  the 
secretary  of  state,  is  sufficient  evidence  of  such  appointment. 
Such  process  maj-  be  served  on  the  person  so  designated,  or, 
in  the  event  that  no  such  person  is  designated,  then  on  the 
secretary  of  state,  and  the  service  is  a  valid  service  on  such 
co-partnership. 

History:      Enacted    March    21,    1S72;    amended    April    22,    1909, 
Stats,  and  Amdts.   1909,  p.  1065. 


817 


§2477  CIVIL  CODE.  [Div.III.Pt.IV. 


CHAPTER  III. 

SPECIAL    PARTNERSHIP. 

Article  I.     Formation  of  Partnership,  §§2477-2485. 

II.     Powers,    Rights,    and     Duties     of     the     Partners, 
§§  2489-2496. 

III.  Liability  of  Partners,  §§2500-2503. 

IV.  Alteration   and    Dissolution     of    the     Partnership, 

§§2507-2510. 


ARTICLE   I. 

FORMATION  OF  PARTNERSHIP. 

§  2477.  Formation  of  special  partnership. 

§  2478.  Of  what  to  consist. 

§  2479.  Certified  statement. 

§  2480.  Acknowledged   and   recorded.      False   statement. 

§  2481.  Affidavit  as  to  sums  contributed. 

§  2482.  No   partnership   until   compliance. 

§  2483.  Certificate  to  be  published. 

§  2484.  Aflldavit  of  publication  filed. 

§  2485.  Renewal  of  special  partnership. 

§2477.     FORMATION    OF    SPECIAL    PARTNERSHIP. 

A  special  partnership  may  be  formed  by  two  or  more  per- 
sons, in  the  manner  and  with  the  effect  prescribed  in  this 
chapter,  for  the  transaction  of  any  business  except  banking 
or   insurance. 

History:     Enacted  March  21,  1872. 
818 


Tit.X,ch.III,art.I.]   CERTIFIED   STATEMENT.  §§2478-2480 

§2478.  OF  WHAT  TO  CONSIST.  A  special  partner- 
ship may  consist  of  one  or  more  persons  called  general 
partners,   and   one   or   more  persons   called   special   partners. 

History:     Enacted  March  21,  1S72. 

§  2479.  CERTIFIED  STATEMENT.  Persons  desirous  of 
forming  a  special  partnership  must  severally  sign  a  certificate, 
stating: 

1.  The  name  under  which  the  partnership  is  to  be  con- 
ducted; 

2.  The  general  nature  of  the  business  intended  to  be 
transacted; 

3.  The  names  of  all  the  partners,  and  their  residences, 
specifying  which  are  general  and  which  are  special  partners; 

4.  The  amount  of  capital  which  each  special  partner  has 
contributed  to  the  common  stock; 

5.  The  periods  at  which  such  partnership  will  begin  and 
end. 

Hi.story:     Enacted  March  21,  1872: 

§2480.  ACKNOWLEDGED  AND  RECORDED.  FALSE 
STATEMENT.  Certificates  under  the  last  section  must  be 
acknowledged  by  all  the  partners,  before  some  officer 
authorized  to  take  acknowledgment  of  deeds,  one  to  be  filed 
in  the  clerk's  office,  and  the  other  recorded  in  the  office 
of  the  recorder  of  the  county  in  which  the  principal  place  of 
business  of  the  partnership  is  situated,  in  a  book  to  be  kept 
for  that  purpose,  open  to  public  inspection;  and  if  the  part- 
nership has  places  of  business  situated  in  different  counties, 
a  copy  of  the  certificate,  certified  by  the  recorder  in  whose 
office  it  is  recorded,  must  be  filed  in  the  clerk's  office,  and 
recorded  in  like  manner  in  the  office  of  the  recorder  in  every 
such  county.  If  any  false  statement  is  made  in  any  such 
certificate,  all  the  persons  interested  in  the  partnership  are 
liable,  as  general  partners,  for  all   the  engagements  thereof. 

History:     Enacted  March  21,  1872. 

819 


§§2481-2484  civil  code.  [Div.III.Pt.I V. 

§2481.     AFFIDAVIT    AS    TO    SUMS    CONTRIBUTED. 

An  affidavit  of  each  of  the  partners,  stating  that  the  sums 
specified  in  the  certificate  of  the  partnership  as  having  been 
contributed  by  each  of  the  special  partners,  have  been  actual- 
ly and  in  good  faith  paid,  in  the  lawful  money  of  the  United 
States,  must  be  filed  in  the  same  office  with  the  original  cer- 
tificate. 

Hi-story:     Enacted  March  21.  1872. 


§2482.     NO    PARTNERSHIP    UNTIL    COMPLIANCE. 

Xo  special  partnership  is  formed  until  the  provisions  of  the 
last  five  sections  are   complied  with. 

History:     Enacted  March  21.  1872. 


§  2483.  CERTIFICATE  TO  BE  PUBLISHED.  The  cer- 
tificate mentioned  in  this  article,  or  a  statement  of  its  sub- 
stance, must  be  published  in  a  newspaper  printed  in  the 
county  where  the  original  certificate  is  filed,  and  if  no  news- 
paper is  there  printed,  then  in  a  newspaper  in  the  state  near- 
est thereto.  Such  publication  must  be  made  once  a  week 
for  four  successive  weeks,  beginning  within  one  week  from, 
the  time  of  filing  the  certificate.  In  case  such  publication  is 
not  so  made,  the  partnership  must  be  deemed  general. 

History:     Enacted  March  21.  1872. 


§2484.     AFFIDAVIT   OF   PUBLICATION    FILED.     An 

affidavit  of  the  making  of  the  publication  mentioned  in  the 
preceding  section,  made  by  the  printer,  publisher,  or  chief 
clerk  of  the  newspaper  in  which  such  publication  is  made, 
may  be  filed  with  the  county  recorder  with  whom  the  original 
certificate  was  filed,  and  is  presumptive  evidence  of  the  facts 
therein  stated. 

History:     Enacted  March  21,  1872. 

820 


Tit.X,cli.ni,arl.l.l  liRNTOWAU  §2485 

§2485.     RENEWAL     OF     SPECIAL     PARTNERSHIP. 

Every  renewal  or  continuance  of  a  special  partnership  must 
be  certified,  recorded,  verified,  and  published  in  the  same  man- 
ner as  upon  its  original  formation. 

Hi-story:     Enacted  March  21,  1872. 


821 


§§2489-2491  civil  code.  [Div.III,Pt.IV 


ARTICLE  II. 

POWERS,    RIGHTS,   AND    DUTIES  OF    THE    PARTNERS. 

§  2489.  Who  to  do  business. 

§  2490.  Special  partners  may   advise. 

§  2491.  May  loan  money.     Insolvency. 

§  2492.  General  partners  may  sue  and  be  sued. 

§  2493.  Withdraviral   of  capital. 

§  2494.  Interest  and  profits. 

§  2495.  Result  of  withdrawing  capital. 

§  2496.  Preferential  transfer  void. 

§2489.  WHO  TO  DO  BUSINESS.  The  general  part- 
ners only  have  authority  to  transact  the  business  of  a  special 
partnership. 

History:  Enacted  March  21,  1872,  founded  upon  §  10,  Act 
March  4,  1870,  Stats.  1869-70,  p.  124;  amended  by  Code  Commis- 
sion Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  816,  held 
unconstitutional,   see  history,    §  4  ante. 

§2490.  SPECIAL  PARTNERS  MAY  ADVISE.  A  spe- 
cial partner  may  at  all  times  investigate  the  partnership 
affairs,  and  advise  his  partners,  or  their  agents,  as  to  their 
management. 

History:  Enacted  March  21,  1872,  founded  upon  §11,  Act 
March   4,   1870,   Stats.   1869-70,  p.   124. 

§2491.  MAY  LOAN  MONEY.  INSOLVENCY.  A  spe- 
cial partner  may  lend  monej'  to  the  partnership,  or  advance 
money  for  it,  and  take  from  it  security  therefor,  and  as  to 
such  loans  or  advances  has  the  same  rights  as  any  other 
creditor;  but  in  case  of  the  insolvency  of  the  partnership, 
all  other  claims  which  he  may  have  against  it  must  be  post- 
poned until  all  other  creditors  are  satisfied. 

History:  Enacted  March  21,  1872,  founded  upon  §  12,  Act 
March  4,  1870,  Stats.  1869-70,  p.  124. 

822 


Tit.X,ch.III,art.II.]    SUING— WITHDRAWAL.  §§2492-2496 

§2492.  GENERAL  PARTNERS  MAY  SUE  AND  BE 
SUED.  In  all  matters  relating  to  a  special  partnership,  its 
general  partners  may  sue  and  be  sued  alone,  in  the  same 
manner  as  if  there  were  no  special  partners. 

History:  Enacted  March  21,  1872,  founded  upon  §  13,  Act 
March  4,   1870,  Stats.   1869-70,  p.  124. 


§2493.  WITHDRAWAL  OF  CAPITAL.  No  special 
partner,  under  any  pretense,  may  withdraw  any  part  of  the 
capital  invested  by  him  in  the  partnership,  during  its  con- 
tmuance. 

History:  Enacted  March  21,  1872,  founded  upon  §  14,  Act 
March   4,    1870,   Stats.   1869-70,  p.   124. 

§2494.  INTEREST  AND  PROFITS.  A  special  partner 
may  receive  such  lawful  interest  and  such  proportion  of 
profits  as  may  be  agreed  upon,  if  not  paid  out  of  the  capital 
invested  in  the  partnership  by  him,  or  by  some  other  special 
partner,  and  is  not  bound  to  refund  the  same  to  meet  sub- 
sequent losses. 

History:  Enacted  March  21,  1872,  founded  upon  §  15,  Act 
March  4,   1870,  Stats.  1869-70,  p.   124. 


§2495.     RESULT      OF      WITHDRAWING      CAPITAL. 

If  a  special  partner  withdraws  capital  from  the  firm,  con- 
trary to  the  provisions  of  this  article,  he  thereby  becomes 
a  general  partner. 

History:  Enacted  March  21,,  1872,  founded  upon  §  16,  Act 
March  4,  1870,  Stats.  1869-70,  p.  124. 

§2496.  PREFERENTIAL  TRANSFER  VOID.  Every 
transfer  of  the  property  of  a  special  partnership,  or  of  a 
partner  therein,  made  after  or  in  contemplation  of  the  in- 
solvency of  such  partnership  or  partner,  with  intent  to  give 

823 


§2496  CIVIL    CODE.  [Div.III.Pt.lV. 

a  preference  to  any  creditor  of  such  partnership  or  partner 
over  anj'  other  creditor  of  such  partnership,  is  void  against 
the  creditors  thereof;  and  every  judgment  confessed,  lien 
created,  or  securit}'  given,  in  like  manner  and  with  the  like 
intent,   is  in   like   manner  void. 

History:       Enacted    March    21,     1872,    founded    upon     §  17,    Act 
March   4,   1870,   Stats.   1869-70,  p.   124. 


824 


Tit.X,ch.III,art.III.]  t.iabtuty.  §§2500-2502 


ARTICLE  111. 

LIABILITY  OF  PARTNERS. 

§  2500.  Liability  of  partners. 

§  2501.  Of  special  partners. 

§  2502.  Liability  for  unintentional  act. 

§  2503.  Who   may   question   existence   of  special   partnership. 

§  2500.  LIABILITY  OF  PARTNERS.  The  general  part- 
ners in  a  special  partnership  are  liable  to  the  same  extent 
as  partners   in  a  general  partnership. 

HLstory:  Enacted  March  21,  1872,  founded  upon  §18,  Act 
March  4,   1870,  Stats.   1869-70,  p.   124. 

§2501.  OF  SPECIAL  PARTNERS.  The  contribution  of 
a  special  partner  to  the  capital  of  the  firm,  and  the  increase 
thereof,  is  liable  for  its  debts,  but  he  is  not  otherwise  liable 
therefor,  except  as  follows: 

1.  If  he  has  wilfully  made  or  permitted  a  false  or  materially 
defective  statement  in  the  certificate  of  the  partnership,  the 
affidavit  filed  therewith,  or  the  published  announcement 
thereof,  he  is  liable,  as  a  general  partner,  to  all  creditors 
of  the  firm; 

2.  If  he  has  wilfully  interfered  with  the  business  of  the 
firm,  except  as  permitted  in  article  two  of  this  chapter,  lie  is 
liable  in  like  manner;  or, 

3.  If  he  has  wilfully  joined  in  or  assented  to  an  act  con- 
trary to  any  of  the  provisions  of  article  two  of  this  chapter, 
he  is  liable  in  like  manner. 

History:  Enacted  March  21,  1872,  founded  upon  §  19,  -Act 
March   4,   1870,  Stats.  1869-70,  p.   124. 

§2502.     LIABILITY     FOR     UNINTENTIONAL     ACT. 

When  a  special  partner  has  unintentionally   dune  any   of  the 

825 


§2503  CIVIL  CODE.  [Div.III,Pt.IV. 

acts  mentioned  in  the  last  section,  he  is  liable,  as  a  general 
partner,  to  any  creditor  of  the  firm  who  has  been  actually 
misled  thereby  to  his  prejudice. 

History:  Enacted  March  21,  1872,  founded  upon  §  20,  Act 
March  4,  1S70,  Stats.  1869-70,  p.  125. 

§2503.  WHO  MAY  QUESTION  EXISTENCE  OF 
SPECIAL  PARTNERSHIP.  One  who,  upon  making  a 
contract  with  a  partnership,  accepts  from  or  gives  to  it  a 
written  memorandum  of  the  contract,  stating  that  the  part- 
nership is  special,  and  giving  the  names  of  the  special  part- 
ners, cannot  afterwards  charge  the  persons  thus  named  as 
general  partners  upon  that  contract,  by  reason  of  an  error 
or  defect  in  the  proceedings  for  the  creation  of  the  special 
partnership,  prior  to  the  acceptance  of  the  memorandum, 
if  an  effort  has  been  made  by  the  partners,  in  good  faith, 
to  form  a  special  partnership  in  the  manner  required  l)y 
article  one  of  this  chapter. 

History;  Enacted  March  21,  1872,  founded  upon  §  21,  Act 
March   4,   1870,  Stats.   1869-70,  p.  125. 


826 


Tit.X,ch.III,art.IV.]  CHANGE  IN.  §§2507,2508 


ARTICLE  IV. 

ALTERATION  AND   DISSOLUTION. 

§  2507.  When    special   partnership    becomes    general. 

§  2508.  How   new   special  partners   may   be   admitted. 

§  2509.  Dissolution  of  special  partnersliip.     Notice. 

§  2510.  The  name  of  a  special  partner  not  used,  unless. 


§2507.  WHEN  SPECIAL  PARTNERSHIP  BECOMES 
GENERAL.  A  special  partnership  becomes  general  if,  with- 
in ten  days  after  any  partner  withdraws  from  it,  or  any 
new  partner  is  received  into  it,  or  a  change  is  made  in  the 
nature  of  its  business  or  in  its  name,  a  certificate  of  such 
fact,  duly  verified  and  signed  by  one  or  more  of  the  partners, 
is  not  filed  with  the  county  clerk  and  recorder  with  whom 
the  original  certificate  of  the  partnership  was  filed,  and  notice 
thereof  published  as  is  provided  in  article  one  of  this  chapter 
for  the  publication  of  the  certificate. 

History:  Enacted  March  21,  1872,  founded  upon  §  22,  Act 
March  4,   1870,  Stats.   1869-70,  p.   125. 


§2508.  HOW  NEW  SPECIAL  PARTNERS  MAY  BE 
ADMITTED.  New  special  partners  may  be  admitted  into 
a  special  partnership  upon  a  certificate,  stating  the  naines, 
residences,  and  contributions  to  the  common  stock  of  each 
of  such  partners,  signed  by  each  of  them,  and  by  the  gen- 
eral partners,  verified,  acknowledged,  or  proved,  according 
to  the  provisions  of  article  one  of  this  chapter,  and  filed 
with  the  county  clerk  and  recorder  with  whom  the  original 
certificate  of  the  partnership  was  filed. 

History:  Enacted  March  21.  1872,  founded  upon  §  23,  Act 
March  4,   1870,  Stats.   1869-70,  p.  125. 

827 


§§2509,2510  CIVIL  CODE.  [Div.III.Pt.IV. 

§  2509.     DISSOLUTION  OF  SPECIAL  PARTNERSHIP. 

NOTICE.  A  special  partnership  is  subject  to  dissolution 
m  the  same  manner  as  a  general  partnership,  except  that  no 
dissolution,  by  the  act  of  the  partners,  is  complete  until 
a  notice  thereof  has  been  filed  and  recorded  in  the  office  of 
the  count}'  clerk  and  recorder  with  whom  the  original  cer- 
tificate was  recorded,  and  published  once  in  each  week,  for 
four  successive  weeks,  in  a  newspaper  printed  in  each  county 
v/here  the  partnership  has  a  place  of  business. 

History:  Enacted  March  21,  1872,  founded  upon  §  24,  Act 
March    4,   1870.   Stats.    1869-70,    p.    12.5. 

§2510.  THE  NAME  OF  A  SPECIAL  PARTNER  NOT 
USED,  UNLESS.  The  name  of  a  special  partner  must  not 
be  used  in  the  firm  name  of  partnership,  unless  it  be  ac- 
companied with  the  word  "limited." 

History:  Enacted  March  21,  1S72,  founded  upon  §  25,  Act 
March  4,   1870.  Stats.   1869-70,  p.   125. 


828 


Tit.X,ch.lV.]  MINING   PARTNERSHIPS.  §§2511-2513 


CHAPTER  IV. 

MINING   PARTNERSHIPS. 

§  2511.  When   a  mining  partnership   exists. 

§  2512.  Express   agreement   not   necessary    to   constitute. 

§  2513.  Profits   and   losses,   how   shared. 

§  2514.  Lien  of  partners. 

§  2515.  Mine.      Partnership    property. 

§  2516.  Partnership    not    dissolved    by    sale    of   interest. 

§  2517.  Purchaser   taltes,   subject   to   liens,   unless,  etc. 

§  2518.  Takes  with  notice  of  lien,  when. 

§  2519.  Contract  in  writing,   when  binding. 

§  2520.  Owners  of  majority  of  shares   govern. 


§2511.     WHEN   A   MINING   PARTNERSHIP   EXISTS. 

A  mining  partnership  exists  when  two  or  more  persons  who 
own  or  acquire  a  mining  claim  for  the  purpose  of  working  it 
and  extracting  the  mineral  tlierefrom  actually  engage  in 
working  the  same. 

HLstory:     Enacted  March  21,  1872. 


§2512.  EXPRESS  AGREEMENT  NOT  NECESSARY 
TO  CONSTITUTE.  An  express  agreement  to  become  part- 
ners or  to  share  the  profits  and  losses  of  mining  is  not 
necessary  to  the  formation  or  existence  of  a  mining  partner- 
ship. The  relation  arises  from  the  ownership  of  shares  or 
interests  in  the  mine  and  working  the  same  for  the  purpose 
of  extracting  the  minerals  therefrom. 

HlHtory:      KiiucIimI   Maicli   21,   1S72. 


§2513.     PROFITS   AND   LOSSES,   HOW   SHARED.     A 

member   of   a   mining   partnership    shares    in    the    profits   and 

829 


I 

§§2514-2517  CIVIL  code.  [Div.III,Pt.lV. 

losses  thereof  in  the  proportion  which  the  interest  or  share 
he  owns  in  the  mine  bears  to  the  whole  partnership  capital 
or  whole  number  of  shares. 

History:     Enacted  March  21,  1S72. 


§  2514.  LIEN  OF  PARTNERS.  Each  member  of  a  min- 
ing partnership  has  a  lien  on  the  partnership  property  for 
the  debts  due  the  creditors  thereof,  and  for  money  advanced 
by  him  for  its  use.  This  lien  exists  notwithstanding  there  is 
an  agreement  among  the  partners  that  it  must  not. 

History:     Enacted  March  21,  1872. 

§2515.     MINE.       PARTNERSHIP     PROPERTY.       The 

mining  ground  owned  and  worked  by  partners  in  mining, 
whether  purchased  with  partnership  funds  or  not,  is  part- 
nership property. 

History:     Enacted  March  21,  1872. 

§2516.  PARTNERSHIP  NOT  DISSOLVED  BY  SALE 
OF  INTEREST.  One  of  the  partners  in  a  mining  partner- 
ship may  convey  his  interest  in  the  mine  and  business  with- 
out dissolving  the  partnership.  The  purchaser,  from  the 
date  of  his  purchase,  becomes  a  member  of  the  partnership. 

History-:     Enacted  March  21,  1872. 

§2517.  PURCHASER  TAKES,  SUBJECT  TO  LIENS, 
UNLESS,  ETC.  A  purchaser  of  an  interest  in  the  mining 
tjround  of  a  mining  partnership  takes  it  subject  to  the  liens 
existing  in  favor  of  the  partners  for  debts  due  all  creditors 
thereof,  or  advances  made  for  the  benefit  of  the  partnership, 
unless  he  purchased  in  good  faith,  for  a  valuable  considera- 
tion, without  notice  of  such  lien. 

History:     Enacted  March  21,  1872. 

830 


Tit.X,ch.IV.]  NOTICE  OF  LIEN.  §§2518-2520 

§2518.     TAKES  WITH  NOTICE  OF  LIEN,  WHEN.     A 

purchaser  of  the  interest  of  a  partner  in  a  mine  when  the 
partnership  is  engaged  in  working  it,  takes  with  notice  of 
all  liens  resulting  from  the  relation  of  the  partners  to  each 
other  and  to  the  creditors  of  the  partnership. 

History:     Enacted  March  21.  1872. 

§2519.     CONTRACT  IN  WRITING,  WHEN  BINDING. 

No  member  of  a  mining  partnership  or  other  agent  or  man- 
ager thereof  can,  by  a  contract  in  writing,  bind  the  partner- 
ship, except  by  express  authority  derived  from  the  members 
thereof. 

.    History:     Enacted  March  21,  1S72. 

§2520.  OWNERS  OF  MAJORITY  OF  SHARES  GOV- 
ERN. The  decision  of  the  members  owning  a  majority  of 
the  shares  or  interests  in  a  mining  partnership  binds  it  in 
the  conduct  of  its  business. 

History:     Enacted  March  21,  1S72. 


831 


S2527  '  OIVTL    CODE.  [Div.III,Pt.IV. 


TITLE  XI. 

INSURANCE. 

Chapter  I.  Insurance  in  General,  §§  2527-2649. 

II.  Marine  Insurance,  §§2655-2746. 

HI.  Fire  Insurance,  §§2752-2757. 

IV.  Life  and  Health  Insurance,  §§2762-2766. 


CHAPTER   I. 

INSURANCE  IN  GENERAL. 

xArticle    I.  Definition    of   Insurance,   §  2527. 

II.  What  May  be  Insured,  §§2531-2534. 

III.  Parties,  §§2538-2542. 

IV.  Insurable  Interest,  §§2546-2558. 

V.  Concealment  and  Representation,  §§2561-2583. 

VI.  The  Policy,  §§2586-2599. 

Vil.  Warranties,  §§2603-2612. 

VIII.  Premiums,    §§2616-2622. 

IX.  Loss,  §§2626-2629. 

X.  Notice  of  Loss,  §§2633-2637. 

XI.  Double   Insurance,   §§2641-2642. 

XII.  Reinsurance,   §§2646-2649. 


832 


Tit.XI,ch.I,arts.IJI.'l        INSURANCE.  §§2527-2532 


ARTICLE   T. 

DEFINITION  OF  INSURANCE. 

§  2527.      Insurance,   what. 

§2527.  INSURANCE,  WHAT.  Insurance  is  a  contract 
whereby  one  undertakes  to  indemnify  another  against  loss, 
damage,  or  liabilit}-,  arising  from  an  unknown  or  contingent 
event. 

Histury:     Enacted  March  21,  1ST2. 


ARTICLE    II. 

WHAT    MAY    BE    INSURED. 

§  2531.  What  events  may   be  insured  against. 

§  2532.  Insurance   of   lottery   or   lottery   prize  unauthorized. 

§  2533.  Usual   kinds   of   insurance. 

§  2534.  All    subject   to   this   chapter. 

§253L  WHAT  EVENTS  MAY  BE  INSURED 
AGAINST.  Any  contingent  or  unknown  event,  whether 
past  or  future,  which  may  damnify  a  person  having  an  in- 
surable interest,  or  create  a  liability  against  him,  may  be 
insured  against,  subject  to  the  provisions  of  this  chapter. 

Hi.story:     Enacted  March  21.  1872. 

§2532.  INSURANCE  OF  LOTTERY  OR  LOTTERY 
PRIZE  UNAUTHORIZED.  The  preceding  section  docs 
not  authorize  an  insurance  for  or  against  the  drawing  of 
any  lottery,  or  for  or  against  any  chance  or  ticket  in  a  lot- 
tery drawing  a  prize. 

HiNtory:     Enacted  March  21,  1872. 

-7  833 


§§2533,2534  civil  code.  [Div.IIl,Pt.IV. 

§2533.     USUAL    KINDS    OF    INSURANCE.     The  most 
usual  kinds  of  insurance  are: 

1.  Marine  insurance; 

2.  Fire  insurance; 

3.  Life   insurance; 

4.  Health    insurance;    and, 

5.  Accident  insurance. 

History:     Enacted  March  21,  1S72. 

§2534.     ALL     SUBJECT     TO     THIS     CHAPTER.     All 

kinds    of    insurance    are    subject    to    the    provisions    of    this 
chapter. 

History:     Enacted  March  21,  1S72. 


834 


Tit.XI,ch.I,art.III.]  PARTIES  TO.  §§2538-2541 


ARTICLE  III. 

PARTIES  TO  THE  CONTRACT. 

§  2538.  Designation    of    parties. 

§  2539.  Who  may  insure. 

§  2540.  Who  may  be  insured. 

§  2541.  Assignment  to  mortgagee  of  thing  insured. 

§  2542.  New   contract   between    insurer  and   assignee. 

§  2538.  DESIGNATION  OF  PARTIES.  The  person  who 
undertakes  to  indemnify  another  by  a  contract  of  insurance 
is  called  the  insurer,  and  the  person  indemnified  is  called 
the  insured. 

History-:     Enacted  March  21,  1872. 

§2539.  WHO  MAY  INSURE.  Any  one  capable  of  mak- 
ing a  contract  may  be  an  insurer,  subject  to  the  restrictions 
imposed  by  special  statutes  upon  foreign  corporations,  non- 
residents, and  others. 

History:     Enacted  March  21,  1872. 

§2540.  WHO  MAY  BE  INSURED.  Any  one  except  a 
public  enemj'  may  be  insured. 

History:     Enacted  March  21,  1872. 

§2541.  ASSIGNMENT  TO  MORTGAGEE  OF  THING 
INSURED.  Unless  the  policy  otherwise  provides,  where  a 
mortgagor  of  property  effects  insurance  in  his  own  name 
providing  that  the  loss  shall  be  payable  to  the  mortgagee, 
or  assigns  a  policy  of  insurance  to  a  mortgagee,  the  insur- 
ance is  deemed  to  be  upon  the  interest  of  the  mortgagor, 
who  does  not  cease  to  be  a  party  to  the  original  contract, 
and  any  act  of  his,  prior  to  the  loss,  which  would  otherwise 

835 


§2542  CIVIL  CODE.  [Div.III.Pt.IV. 

avoid  the  insurance  will  have  the  same  effect,  although  the 
property  is  in  the  hands  of  the  mortgagee,  but  any  act  which, 
under  the  contract  of  insurance,  is  to  be  performed  bj'  the 
mortgagor,  may  be  performed  by  the  mortgagee  therein 
named,  with  the  same  effect  as  if  it  had  been  performed  by 
the  mortgagor. 

History:  Enacted  March  21,  1872,  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  416,  held 
unconstitutional,  see  history,  §  593  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  616;  amended  April 
15,    1909,   Stats,   and   Amdts.    1909,   p.    914.      lu  eflEect   immediately. 

§2542.  NEW  CONTRACT  BETWEEN  INSURER  AND 
ASSIGNEE.  If  an  insurer  assents  to  the  transfer  of  an  in- 
surance from  a  mortgager  to  a  mortgagee,  and,  at  the  time 
of  his  assent,  imposes  further  obligations  on  the  assignee, 
making  a  new  contract  with  him,  the  acts  of  the  mortgager 
cannot  affect  his  rights. 

History:     Enacted  March  21,  1872. 


836 


Tit.XI,ch.I,art.IV.]      INSURABLE  INTEREST.  §§2546-2548 


ARTICLE  IV. 

INSURABLE   INTEREST. 

§  2546.  Insurable  interest,  what. 

§  2.547.  In  what  may  consist. 

§  2548.  Interest   of   carrier   or   depositary. 

§  2549.  Mere  expectancies. 

§  2550.  Measure   of  interest   in   propert.v. 

§  2551.  Insurance   without   interest,   illegal. 

§  2552.  When  interest  must  exist. 

§  2553.  Effect   of   transfer. 

§  2554.  Transfer  after  loss. 

§  2555.  Exception  in   the  case  of  several  subjects  in  one  policy. 

§  2556.  In  case  of  the  death  of  the  insurer. 

§  2557.  In  the  case  of  transfer  between  co-tenants. 

§  2558.  Void  insurance  stipulations. 

§2546.  INSURABLE  INTEREST,  WHAT.  Every  in- 
terest in  property,  or  an}'  relation  thereto,  or  liability  in 
respect  thereof,  of  such  a  nature  that  a  contemplated  peril 
mip:ht  directly  damnify  the  nisured,  is  an  insurable  in- 
terest. 

Hi.story:     Enacted  March  21,  1872. 

§2547.  IN  WHAT  MAY  CONSIST.  An  insural^le  inter- 
est in  property  may  consist  in: 

1.  An  existing  interest; 

2.  An  inchoate  interest  founded  on  an  existing  interest;  or, 

3.  An  expectancy,  coupled  with  an  existing  interest  in  that 
out  of  which  the  expectancy  arises. 

History:     Enacted  March  21,  1S72. 

§2548.     INTEREST  OF  CARlRIER  OR  DEPOSITARY. 

A   carrier  or   depositarj-   of   any   kind   has   an    insurable   inter- 
est in  a  thing  held  by  him  as  such,  to  the  extent  of  its  value. 

History:     Enacted  March  21,  1872. 

837 


§§2549-2554  civil  code.  [Div.III,Pt.IV. 

§  2549.  MERE  EXPECTANCIES.  A  mere  contingent  or 
expectant  interest  in  anything,  not  founded  on  an  actual 
right  to  the  thing,  nor  upon  any  valid  contract  for  it,  is 
not  insurable. 

History:     Enacted  March  21,  1872. 

§2550.     MEASURE    OF    INTEREST    IN    PROPERTY. 

The  measure  of  an  insurable  interest  in  property  is  the 
extent  to  which  the  insured  might  be  damnified  by  loss  or 
injury  thereof. 

History:     Enacted  March  21,  1872. 

§2551.  INSURANCE  WITHOUT  INTEREST,  IL- 
LEGAL. The  sole  object  of  insurance  is  the  indemnity  of 
the  insured,  and  if  he  has  no  insurable  interest  the  contract 
is  void. 

History:     Enacted  March  21,  1872. 

§  2552.  WHEN  INTEREST  MUST  EXIST.  An  interest 
insured  must  exist  when  the  insurance  takes  effect,  and  when 
the  loss  occurs,  but  need  not  exist  in  the  mean  time. 

History;      Enacted  March  21,   1872. 

§  2553.  EFFECT  OF  TRANSFER.  Except  in  'the  cases 
specified  in  the  next  four  sections,  and  in  the  cases  of  life, 
accident,  and  health  insurance,  a  change  of  interest  in  any 
part  of  a  thing  insured,  unaccompanied  by  a  corresponding 
change  of  interest  in  the  insurance,  suspends  the  insurance 
to  an  equivalent  extent,  until  the  interest  in  the  thing  and 
the  interest  in  the  insurance  are  vested  in  the  same  person. 

History:     Enacted  March  21,  1872. 

§  2554.  TRANSFER  AFTER  LOSS.  A  change  of  inter- 
est   in    a    thing    insured    after    the    occurrence    of    an    injury 

838 


Tit.XI,ch.I,art.IV.]  EXCEPTIONS.  §§2555-2558 

which   results  in  a   loss,   docs   not   affect   the   right   of   the   in- 
sured to  indemnity  for  the  loss. 

History:     Enacted  March  21,  1872. 

§2555.  EXCEPTION  IN  THE  CASE  OF  SEVERAL 
SUBJECTS  IN  ONE  POLICY,  A  change  of  interest  in  one 
or  more  of  several  distinct  things,  separately  insured  by  one 
policy,  does  not  avoid  the  insurance  as  to  the  others. 

HLstory:     Enacted  March  21,  1S72. 

§2556.  IN  CASE  OF  THE  DEATH  OF  THE  INSUR- 
ER. A  change  of  interest,  by  will  or  succession,  on  the 
death  of  the  insured,  does  not  avoid  an  insurance;  and  his 
interest  in  the  insurance  passes  to  the  person  taking  his 
interest  in  the  thing  insured. 

History:     Enacted  March  21/1872. 

§2557.  IN  THE  CASE  OF  TRANSFER  BETWEEN 
COTENANTS.  A  transfer  of  interest  by  one  of  several 
partners,  joint  owners,  or  owners  in  common,  who  are  joint- 
ly insured,  to  the  others,  does  not  avoid  an  insurance,  even 
though  it  has  been  agreed  that  the  insurance  shall  cease  upon 
an  alienation  of  the  thing  insured. 

History:     Enacted  March  21,  1872. 

§2558.  VOID  INSURANCE  STIPULATIONS.  Every 
stipulation  in  a  policy  of  insurance  for  the  payment  of  loss 
whether  the  person  insured  has  or  has  not  any  interest  in 
the  property  insured,  or  that  the  policy  shall  be  received  as 
proof  of  such  interest,  and  every  policy  executed  by  vvay 
of  gaming  or  wagering,  is  void. 

History:     Enacted  March   30,   1874,  Code  Amdts.   1873-4,   p.   255. 


839 


§§2561,2562'  <"TVTL  CODE.  |Uiv.III,rt.IV. 


ARTICLE  V. 

CONCEALMENT   AND   REPRESENTATION. 

§  2561.  Concealment,  what. 

§  2562.  Effect  of  concealment. 

§  2563.  What   must  be   disclosed. 

§  2564.  Matters    which    need   not   be   communicated    without   in- 
quiry. 

§  2565.  Test   of   materiality. 

§  2566.  Matters  which  each  is  bound  to  know. 

§  2567.  Waiver  of  communication. 

§  256S.  Interest  of  insured. 

§  2569.  Fraudulent  warranty. 

§  2570.  Matters  of  opinion. 

§  2571.  Representation,  what. 

§  2572.  When  made. 

§  2573.  How  interpreted. 

§  2574.  Representation   as   to   future. 

§  2575.  How  may  affect  policy. 

§  2576.  When  may  be  withdrawn. 

§2577.  Time   intended  by   representation. 

§  2578.  Representing  information. 

§  2579.  Falsity. 

§  25S0.  Effect  of  falsity. 

§  25'Sl.  Materiality. 

§  2582.  Application  of  provisions  of  this  article. 

§  2583.  Rescission   of  insurance  contiact. 


§2561.  CONCEALMENT,  WHAT.  A  neglect  to  com- 
municate that  which  a  party  knows,  and  otight  to  communi- 
cate, is  called  a  concealment. 

HLstory:     Enacted  March  21.   1S72. 


§2562.  EFFECT  OF  CONCEALMENT,  A  concealmen, . 
whether  intentional  or  unintentional,  entitles  the  injtired 
party  to  rescind   a  contract   of  insurance. 

History:      Enacted   March  21,   1S72. 

840 


Tit.X],c]i.I,art.\'.|  I  )l.sci.()RURRS.  §§2563-2566 

S  2563.  WHAT  MUST  BE  DISCLOSED.  Each  party  to 
a  contract  of  insurance  must  communicate  to  the  otlier,  in 
good  faith,  all  facts  within  his  knowledge  which  are  or 
which  he  believes  to  be  material  to  the  contract,  and  which 
the  other  has  not  the  means  of  ascertaining,  and  as  to  whicli 
he  makes  no  warranty. 

History:     Enacted  March  21,   1872. 

§2564.  MATTERS  WHICH  NEED  NOT  BE  COM- 
MUNICATED WITHOUT  INQUIRY.  Neither  party  to  a 
contract  of  insurance  is  bound  to  communicate  information 
of  the  matters  following,  except  in  answer  to  the  inquiries 
of  the  other: 

1.  Those  which  the   other   knows; 

2.  Those  which,  in  the  exercise  of  ordinary  care,  the  other 
ought  to  know,  and  of  which  the  former  has  no  reason  to 
suppose  him  ignorant; 

3.  Those  of  which  the  other  waives  communication; 

4.  Those  which  prove  or  tend  to  prove  the  existence  of 
a  risk  excluded  by  a  warrant)-,  and  which  are  not  otherwise 
material;    and, 

5.  Those  which  relate  to  a  risk  excepted  from  the  policy, 
and  which  are  not  otherwise  material. 

History:     Enacted  March  21,   1S72.      ' 

§  2565.  TEST  OF  MATERIALITY.  Materiality  is  to  be 
determined  not  by  the  event,  but  solely  by  the  probable  and 
reasonable  influence  of  the  facts  upon  the  party  to  whom 
the  communication  is  due.  in  forming  his  estimate  of  the 
disadvantages  of  the  proposed  contract,  or  in  making  his 
inquiries. 

History:     Enacted  March  21,   1872. 

§2566.  MATTERS  WHICH  EACH  IS  BOUND  TO 
KNOW.     Each  party  lo  a  contract  of  insurance  is  bound  to 

841 


§g  2567-2571  civil  code.  [Diy.III,Pt.IV. 

know  all  the  general  causes  which  are  open  to  his  inquiry, 
equally  with  that  of  the  other,  and  which  may  affect  either 
the  political  or  material  perils  contemplated;  and  all  general 
usages  of  trade. 

History:     Enacted  March  21,   1872. 

§2567.  WAIVER  OF  COMMUNICATION.  The  right 
to  information  of  material  facts  may  be  waived,  either  by 
the  terms  of  insurance  or  by  neglect  to  make  inquiries  as  to 
such  facts,  where  they  are  distinctly  implied  in  other  facts 
of  which  information  is  communicated. 

History:     Enacted  March  21,  1872. 

§2568.  INTEREST  OF  INSURED.  Information  of  the 
nature  or  amount  of  the  interest  of  one  insured  need  not 
be  communicated  unless  in  answer  to  an  inquiry,  except 
as  prescribed  by  section  twenty-five  hundred  and  eighty- 
seven. 

History:     Enacted  March  21,   1872. 

§2569.  FRAUDULENT  WARRANTY.  An  intentional 
and  fraudulent  omission,  on  the  part  of  one  insured,  to 
communicate  information  of  matters  proving  or  tending 
to  prove  the  falsity  of  a  warranty,  entitles  the  insurer  to 
rescind. 

History:     Enacted  March  21,  1872. 

§2570.  MATTERS  OF  OPINION.  Neither  party  to  a 
contract  of  insurance  is  bound  to  communicate,  even  upon 
inquiry,  information  of  his  own  judgment  upon  the  matters 
in  question. 

History:     Enacted  March  21,   1872. 

§2571.  REPRESENTATION,  WHAT.  A  representation 
may  be  oral  or  written. 

History:     Enacted  March  21,  1872. 

842 


Tit.XI,ch.I,art.V.]       INTERPRETATION.  §§2572-2578 

§  2572.  WHEN  MADE,  A  representation  may  be  made 
at  the  same  time  with  issuing  the  policy,  or  before  it. 

Hi.story:     Enacted  March  21,   1872. 

§  2573.  HOW  INTERPRETED.  The  language  of  a  rep- 
resentation is  to  be  interpreted  by  the  same  rules  as  the 
language  of  contracts  in  general. 

HLstory;     Enacted  March  21,   1872. 

§  2574.  REPRESENTATION  AS  TO  FUTURE.  A  rep- 
resentation as  to  the  future  is  to  be  deemed  a  promise,  unless 
it  appears  that  it  was  merely  a  statement  of  belief  or  ex- 
pectation. 

History:      Enacted  March  21,   1872. 

§2575.  HOW  MAY  AFFECT  POLICY.  A  representa- 
tion cannot  be  allowed  to  qualify  an  express  provision  in  a 
contract  of  insurance;  but  it  may  qualify  an  implied  war- 
ranty. 

History:      Enacted  March  21,   1872. 

§  2576.  WHEN  MAY  BE  WITHDRAWN.  A  representa- 
tion may  be  altered  or  withdrawn  before  the  insurance  is 
effected,  but  not  afterwards. 

History:      Enacted  March  21,   1872. 

§2577.     TIME    INTENDED    BY    REPRESENTATION. 

The   completion   of  the   contract   of   insurance   is   the   time   to 
which  a  representation   must  be  presumed  to  refer. 

History:     Enacted  March  21,  1872. 

§2578.  REPRESENTING  INFORMATION.  When  a 
person  insured  has  no  personal  knowledge  of  a  fact,  he  may 
nevertheless  repeat  information  which  he  has  upon  the  sub- 

843 


§§2579-2583  civil  code.  [Div.III.Pt.IV. 

icct,  and  wliicli  he  believes  lo  be  true,  with  the  explanation 
that  he  does  so  on  the  information  of  others,  or  he  may  sub- 
mit the  information,  in  its  whole  extent,  to  the  insurer;  and 
in  neither  case  is  he  responsible  for  its  truth,  unless  it  pro- 
ceeds from  an  agent  of  the  insured,  whose  duty  it  is  to  give 
the  intelligence. 

History:      Enacted  March  21,   1872. 

§2579.  FALSITY.  A  representation  is  to  be  deemed 
false  when  the  facts  fail  to  correspond  with  its  assertions  or 
stipulations. 

History:      Enacted  March  21,   1872. 

§2580.     EFFECT    OF   FALSITY.     If   a    representation   is. 
false  in  a  material  point,  whether  affirmative  or  promissory, 
the  injured  party  is  entitled  to  rescind  the  contract  from  the 
time  when  the  representation  becomes  false. 
History:     Enacted  March  21,  1872. 

§2581.  MATERIALITY.  The  materiality  of  a  represen- 
tation is  determined  by  the  same  rule  as  the  materiality  of  a 
concealment. 

History:     Enacted   March  21,   1872. 

§2582.  APPLICATION  OF  PROVISIONS  OF  THIS 
ARTICLE.  The  provisions  of  this  article  apply  as  well 
to  a  modification  of  a  contract  of  insurance  as  to  its  original 
formation. 

History:     Enacted  March  21,   1872. 

§2583.     RESCISSION    OF    INSURANCE    CONTRACT. 

Whenever  a  right  to  rescind  a  contract  of  insurance  is  given 
to  the  insurer  by  any  provision  of  this  chapter,  such  right 
may  be  exercised  at  any  time  previous  to  the  commencement 
of  an  action  on  the  contract. 

History:  Enacted  March   30,   1874;  Code  Amdts.   1873-4,   p.   255 

844 


Tit.XI,ch.I,art.VI.]  THE  POLICY.  §§2586,2587 


ARTICLE  VI. 

THE  POLICY.     • 

§  25  86.  Policy,   what. 

§  2587.  What  must  be  specified  in  a  policy. 

§  25S8.  Whose  interest  is  covered. 

§  2589.  Insurance  by  agent  or  trustee. 

§  2590.  Insurance  by  part  owner. 

§  2591.  General  terms. 

§  2592.  Successive  owners. 

§  2593.  Transfer   of   the   thing   insured. 

§  2594.  Open  and  valued  policies. 

§  2595.  Open   policy,   what. 

§  2596.  Valued  policy,  what. 

§  2597.  Running  policy,   wliat. 

§  2598.  Effect  of  receipt. 

§  2599.  Agreement  not  to  transfer. 

§2586.  POLICY,  WHAT.  The  written  instrument,  in 
which  a  contract  of  insurance  is  set  forth,  is  called  a  policy 
of  insurance. 

History:      Enacted   March    21,    1872. 


§2587.     WHAT  MUST  BE  SPECIFIED  IN  A  POLICY. 

A  policy  of  insurance  must  specify: 

1.  The  parties  between  whom  the  contract  is  made; 

2.  The  rate  of  premium; 

3.  The  property  or  life  msurcd; 

4.  The  interest   of   the   insured   in    property    insured,    if   he 
is  not  the   absolute   owner   thereof; 

5.  The  risks  insured  against;  and, 

6.  The  period  during  which  the  insurance  is  to  continue. 

History:     Enacted  March  21,   1S72. 

845 


§§2588-2593  civil  code.  [Div.III.Pt.IV. 

§2588.  WHOSE  INTEREST  IS  COVERED.  When  the 
name  of  the  person  intended  to  be  insured  is  specified  in  a 
policy,  it  can  be  applied  only  to  his  own  proper  interest. 

History:     Enacted  March   21,   1S72. 

§  2589.  INSURANCE  BY  AGENT  OR  TRUSTEE.  When 
an  insurance  is  made  by  an  agent  or  trustee,  the  fact  that  his 
principal  or  beneficiary  is  the  person  really  insured  may  be 
indicated  by  describing  him  as  agent  or  trustee,  or  by  other 
general  words  in   the  policy. 

History:     Enacted  March   21,   1872. 

§2590.  INSURANCE  BY  PART  OWNER.  To  render 
an  insurance,  effected  by  one  partner  or  part  owner,  applicable 
to  the  interest  of  his  copartners,  or  of  other  part  owners,  it 
is  necessary  that  the  terms  of  the  policy  should  be  such  as 
are  applicable  to  the  joint  or  common  interest. 

History:     Enacted  March   21,   1S72. 

§2591.  GENERAL  TERMS.  When  the  description  of  the 
msured  in  a  policy  is  so  general  that  it  may  comprehend  any 
person  or  any  class  of  persons,  he  only  can  claim  the  benelit 
of  the  policy  who  can  show  that  it  was  intended  to  include 
him. 

History:     Enacted  March   21,   1872. 


§2592.  SUCCESSIVE  OWNERS.  A  policy  may  be  so 
framed  that  it  will  inure  to  the  benefit  of  whomsoever,  during 
the  continuance  of  the  risk,  may  become  the  owner  of  the 
interest  insured. 

History:     Enacted  March  21,  1S72. 

§2593.     TRANSFER  OF  THE  THING  INSURED.     The 

mere  transfer  of  a  thing  insured  does  not  transfer  the  policy, 

846 


Tit.XI,ch.I,art.\  I.]  OPEN  policy.  §§2594-2599 

but  suspends  it  until  the  same  person  becomes  the  owner  of 
both  the  policy  and  the  thing  insured. 

History:     Enacted  March   21,   1S72. 

§2594.  OPEN  AND  VALUED  POLICIES.  A  policy  is 
either  open  or  valued. 

History:     Enacted  March  21,   1S72. 

§  2595.     OPEN  POLICY,  WHAT.     An  open  policy  is  one 
in  which  the  value  of  the  thing  insured  is  not  agreed  upon, 
but  is  left  to  be  ascertained  in  case  of  loss.  . 
History:     Enacted  March  21,  1872. 

§  2596.  VALUED  POLICY,  WHAT.  A  valued  policy  is 
one  which  expresses  on  its  face  an  agreement  that  the  thing 
insured  shall  be  valued  at  a  specified  sum. 

History:     Enacted  March  21,   1872. 

§  2597.  RUNNING  POLICY,  WHAT.  A  running  policy 
is  one  which  contemplates  successive  insurances,  and  which 
provides  that  the  object  of  the  policy  may  be  from  time  to 
time  defined,  especially  as  to  the  subjects  of  insurance,  b> 
additional  statements  or  indorsements. 

History:      Enacted   March   21,   1872. 

§  2598.  EFFECT  OF  RECEIPT.  An  acknowledgment  in 
a  policy  of  the  receipt  of  premium  is  conclusive  evidence  of 
its  payment,  so  far  as  to  make  the  policy  binding,  notwith- 
standing any  stipulation  therein  that  it  shall  not  be  bmding 
until  the  premium  is  actually  paid. 

History:     Enacted  March   21,   1S72. 

§  2599.  AGREEMENT  NOT  TO  TRANSFER.  An  agree- 
ment made  before  a  loss,  not  to  transfer  the  claim  of  a  per- 
son insured  against  the  insurer,  after  the  loss  has  happened, 

is  void. 

History:     Enacted  March  21,   1872. 

847 


§§2603-2606  civil  code.  |  Div.III.Pt.lV. 


ARTICLE  VII. 

WARRANTIES. 

§  2603.  Warranty,   express  or  implied. 

§  2604.  Form.     [No  particular  words  necessary.] 

§  2605.  Warranty   must  be   in   policy. 

§  2606.  Past,  present,  and  future  warranties. 

§  2607.  Warranty  as  to  past  or  present. 

§  260S.  Warranty  as  to   the  future. 

§  2609.  Performance  excused. 

§  2610.  What  acts  avoid  the  policy. 

§  2611.  Policy  may  provide  for  avoidance. 

§  2612.  Breach   without  fraud. 

§2603.     WARRANTY,     EXPRESS     OR     IMPLIED.     A 

warranty  is   either  express  or  implied. 

History:     Enacted  March   21,   1S72. 

§  2604.  FORM.  [NO  PARTICULAR  WORDS  NECES- 
SARY.] No  particular  form  of  words  is  necessary  to  create 
a  warranty. 

History:     Enacted  March   21,   1S72. 

§2605.  WARRANTY  MUST  BE  IN  POLICY.  Every 
express  warranty,  made  at  or  before  the  execution  of  a  policj', 
must  be  contained  in  the  policy  itself,  or  in  another  instru- 
ment signed  by  the  insured  and  referred  to  in  the  policy, 
as  making  a  part  of  it. 

History:  Enacted  March  21^  1S72;  amended  March  30,  1S74, 
Code   Amdts.    1873-4,   p.    255. 

§2606.  PAST,  PRESENT.  AND  FUTURE  WAR- 
RANTIES.  A  warranty  may  relate  to  the  past,  the  present, 
the  future,  or  to  any   or  all  of  these. 

Hi.story:     Enacted  March   21,   1872. 

848 


Tit.XLch.I.art.VlI.]         WARRANTY.  §§2607-2612 

S2607.     WARRANTY  AS  TO  PAST  OR  PRESENT.      \ 

statement  in  a  policy,  of  a  matter  relating  to  the  person  or 
thing  insured,  or  to  the  risk,  as  a  fact,  is  an  express  warranty 

thereof. 

History:     Enacted  March   21,   1872. 

§  2608.     WARRANTY  AS  TO  THE  FUTURE.     A  state- 
ment in  a  policy,  which  imports  that  it  is  intended  to  do  or 
not  to  do  a  thing  Vv^hich  materially  aflfects  the  risk,  is  a  war- 
ranty that  such  act  or  omission  shall  take  place. 
History:     Enacted  March  21,   1872. 

§  2609.  PERFORMANCE  EXCUSED.  When,  before  the 
time  arrives  for  the  pcrfomance  of  a  warranty  relating  to  the 
future,  a  loss  insured  against  happens,  or  performance  he- 
comes  unlawful  at  the  place  of  the  contract,  or  impossil:)le, 
the  omission  to  lulfil  the  warranty  does  not  avoid  the  policy. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1S73-4,  pp.    255-6. 

§  2610.  WHAT  ACTS  AVOID  THE  POLICY.  The  vio- 
lation of  a  material  warranty,  or  other  material  provision  of 
a  policy,  on  the  part  of  either  party  thereto,  entitles  the  other 

to  rescind. 

History:     Enacted  March   21,   1872. 

§2611.     POLICY  MAY   PROVIDE  FOR  AVOIDANCE. 

A  policy  may  declare  that  a  violation  of  specified  provisions 
thereof  shall  avoid  it,  otherwise  the  breacli  of  an  immaterial 
l)rovision  does  not  avoid  the  policy. 

History:     Enacted  March   21,   1872. 

§2612.  BREACH  WITHOUT  FRAUD.  A  breach  of  war- 
ranty, without  fraud,  merely  exonerates  an  insurer  from  the 
lime  that  it  occurs,  or  where  it  is  broken  in  its  inception  pre- 
vents the  policy  from  attaching  to  the  risk. 

History:     Enacted  March   21,  1872. 

849 


§§2616-2618  CIVIL  CODE.  [Div.III,Pt.IV. 


ARTICLE  VIII. 

PREMIUM. 

§  2616.  When  premium  is  earned. 

§  2617.  Return  of  premium. 

§  2618.  When   not  allowed. 

§  2619.  Return  for  fraud. 

§  2620.  Over-insurance  by  several  insurers. 

§  2621.  Contribution. 

§  2622.  Proportionate  contribution. 

§  2616.  WHEN  PREMIUM  IS  EARNED.  An  insurer  is 
entitled  to  paymenl;  of  the  premium  as  soon  as  the  thing 
msured  is  exposed  to  the  peril  insured  against. 

History:     Enacted  March   21,  1872. 

§2617.  RETURN  OF  PREMIUM.  A  person  insured  is 
entitled  to  a  return  of  premium,  as  follow^s: 

1.  To  the  whole  premium,  if  no  part  of  his  interest  in  the 
thing  insured  be  exposed  to  any  of  the  perils  insured  against. 

2.  Where  the  insurance  is  made  for  a  definite  period  of 
time,  and  the  insured  surrenders  his  policy,  to  such  propor- 
tion of  the  premium  as  corresponds  with  the  unexpired  time, 
after  deducting  from  the  whole  premium  any  claim  for  loss 
or  damage  under  the  policy  which  has  previously  accrued. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    256. 

§2618.  WHEN  NOT  ALLOWED.  If  a  peril  insured 
against  has  existed,  and  the  insurer  has  been  liable  for  any 
period,  however  short,  the  insured  is  not  entitled  to  return 
of  premiums,  so  far  as   that  particular   risk   is   concerned. 

History;  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   p.    256. 

850 


Tit.XI,ch.I,art.VIII.]  PREMIUM— FRAUD.  §§2619-2622 

§  2619.  RETURN  FOR  FRAUD.  A  person  insured  is  en- 
titled to  a  return  of  the  premium  when  the  contract  is  void- 
able, on  account  of  the  fraud  or  misrepresentation  of  the  in- 
surer, or  on  account  of  facts,  of  the  existence  of  which  the 
msured  was  ignorant  without  his  fault;  or  when,  by  any 
default  of  the  insured  other  than  actual  fraud,  the  insurer 
never  incurred  any  liability  under  the  policy. 

HKstory:     Enacted  March   21,  1872. 

§2620.  OVER-INSURANCE  BY  SEVERAL  INSUR- 
ERS. In  case  of  an  over-insurance  by  several  insurers,  the 
insured  is  entitled  to  a  ratable  return  of  the  pfemmm,  pro- 
portioned to  the  amount  by  which  the  aggregate  sum  insured 
in  all  the  policies  exceeds  the  insurable  value  of  the  thing  at 
risk. 

History:     Enacted  March  21,  1872. 

§  2621.  CONTRIBUTION.  V/hen  an  over-insurance  is 
effected  by  simultaneous  policies,  the  insurers  contribute  to 
the  premium  to  be  returned  in  proportion  to  the  amount  in- 
sured by  their  respective  policies. 

History:     Enacted  March   21,  1872. 

§2622.  PROPORTIONATE  CONTRIBUTION.  When 
an  over-insurance  is  effected  by  successive  policies,  those 
only  contribute  to  a  return  of  the  premium  who  are  exon- 
erated by  prior  insurances  from  the  liability  assumed  by 
them,  and  in  proportion  as  the  sum  for  which  the  premium 
was  paid  exceeds  the  amount  for  which,  on  account  of  prior 
insurance,  they  could   be  made  liable. 

Hi.story:     Enacted  March   21,   1872. 


851 


§2626-2628  civil  code.  |Uiv.IIT,Pt.lV. 


ARTICLE  IX. 

LOSS. 

§  2626.  Perils,   remote   and  proximate. 

§  2627.  Loss  incurred  in   rescue   from   peril. 

§  262S.  Excepted  perils. 

§  2629.  Negligence  and  fraud. 

§2626.  PERILS,  REMOTE  AND  PROXIMATE.  An  in- 
surer is  liable  for  a  loss  of  which  a  peril  insured  a.^ainst  was 
the  proximate  cause;  although  a  peril  not  contemplated  by 
the  contract  may  have  been  a  remote  cause  of  the  loss;  blit- 
he is  not  liable  for  a  loss  of  which  the  peril  insured  against 
was  only  a  remote  cause. 

History:      Enacted  March   21,  1872. 

§2627.     LOSS  INCURRED  IN  RESCUE  FROM  PERIL. 

An  insurer  is  liable  where  the  thing  insured  is  rescued  from 
a  peril  insured  against,  that  would  otherwise  have  caused  a 
loss,  if  in  the  course  of  such  rescue  the  thing  is  exposed  to 
a  peril  not  insured  against,  which  permanently  deprives  the 
insured  of  its  possession,  in  whole  or  in  part;  or  where  a  loss 
is  caused  by  efforts  to  rescue  the  thing  insured  from  a  peril 
insured  against. 

History:     Enacted  March   21,   1872. 

§2628.  EXCEPTED  PERILS.  Where  a  peril  is  specially 
excepted  in  a  contract  of  insurance,  a  loss,  which  would  not 
have  occurred  but  for  such  peril,  is  thereby  excepted;  al- 
though the  immediate  cause  of  the  loss  was  a  peril  which 
was  not  excepted. 

History:     Enacted  March  21,  1872. 
852 


Tit.XI,cli.I,art.IX.]  NEGLIGENCE.  §2629 

§  2629.  NEGLIGENCE  AND  FRAUD.  An  insurer  is  not 
liable  for  a  loss  caused  by  the  wilful  act  of  the  insured;  but 
he  is  not  exonerated  by  the  negligence  of  the  insured,  or  of 
his  agencs  or  others. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code   Amdts.    1S73-4,    p.   256. 


853 


§§2633-2634  CIVIL  code.  [Div.III.Pt.IV. 


ARTICLE  X. 

NOTICE  OF  LOSS. 

§  2633.  Notice   of  loss. 

§  2633a.  Time  for  giving  notice  of  accident,  etc. 

§  2634.  Preliminary   proofs. 

§  263.5.  Waivers   of  defects  in  notice,   etc. 

§  2636.  Waiver  of  delay. 

§  2637.  Certificate,   when   dispensed   with. 

§2633.  NOTICE  OF  LOSS.  In  case  of  loss  upon  an  in- 
surance against  fire,  an  insurer  is  exonerated,  if  notice  there- 
of be  not  given  to  him  by  some  person  insured,  or  entitled 
to  the  benefit  of  the  insurance,  without  unnecessary  delay. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.   1873-4,  pp.   256-7. 

§  2633a.  TIME  FOR  GIVING  NOTICE  OF  ACCIDENT, 
ETC.  No  conditions,  stipulations  or  agreements  contained 
in  any  application  for  nisurance  in  any  foreign  or  domestic 
casualty  or  accident  insurance  company,  or  contained  in  any 
policy  issued  by  any  such  company-,  or  in  anj-  way  made 
by  any  such  company,  limiting  the  time  within  which  notice 
of  the  accident  or  injury,  or  death,  shall  be  given  to  such 
company  to  a  period  o:  less  than  twenty  days  after  the  hap- 
pening of  the  accident,  or  injury,  or  death,  shall  be  valid. 
Said  notice  may  be  given  to  the  company  insuring,  at  any 
time  within  twenty  days  after  the  happening  of  the  accident, 
or  injur}',  or  death  and  shall  be  valid  and  binding  on  the 
company. 

History:  Enacted  June  6,  1913,  Stats,  and  Amdts.  1913,  p.  677. 
In  effect  August  10,  1913. 

§2634.  PRELIMINARY  PROOFS.  When  preliminary 
proof  of  loss  is  required  by  a  policy,  the  insured  is  not  bound 

854 


Tit.XI,ch.I,art.X.]  WAIVERS.  §§2635-2637 

to  give  such  proof  as  would  be  necessary  in  a  court  of  jus- 
tice; but  it  is  sufificient  for  him  to  give  the  best  evidence 
v^hich  he  has  in  his  power  at  the  time. 

History:     Enacted  March   21,  1S72. 

§2635.     WAIVERS    OF    DEFECTS    IN    NOTICE,    ETC. 

All  defects  in  a  notice  of  loss,  or  in  preliminary  proof  there- 
of, which  the  insured  might  remedy,  and  which  the  insurer 
omits  to  specify  to  him,  without  unnecessary  delay,  as 
grounds   of  objection,  are  waived. 

History:     Enacted  March   21,  1872. 

§2636.  WAIVER  OF  DELAY.  Delay  in  the  presenta- 
tion to  an  insurer  of  notice  or  proof  of  loss  is  waived,  if 
caused  by  any  act  of  his,  or  if  he  omits  to  make  objection 
promptly  and   specifically  upon   that  ground. 

History:     Enacted  March   21,  1872. 

§2637.     CERTIFICATE,    WHEN    DISPENSED    WITH. 

If  a  policy  requires,  by  way  of  preliminary  proof  of  loss, 
the  certificate  or  testimony  of  a  person  other  than  the  in- 
sured, it  is  sufficient  for  the  insured  to  use  reasonable  dili- 
gence to  procure  it,  and  in  case  of  the  refusal  of  such  per- 
son to  give  it,  then  to  furnish  reasonable  evidence  to  the 
insurer  that  such  refusal  was  not  induced  by  any  just  grounds 
of  disbelief  in  the  facts  necessary  to  be  certified. 

History:     Enacted  March  21,  1872. 


855 


§§2641,2642  civil  code.  [Div.III,Pt.IV. 


ARTICLE  XI. 

DOUBLE   INSURANCE. 

§  2641.     Double  insurance. 

§  2642.     Contribution  in  case  of  double  insurance. 

§2641.  DOUBLE  INSURANCE.  A  double  insurance  ex- 
ists where  the  same  person  is  insured  by  several  insurers 
separately   in   respect   to   the   same   subject   and   interest. 

History:     Enacted  March   21,  1872. 

§  2642.  CONTRIBUTION  IN  CASE  OF  DOUBLE  IN- 
SURANCE. In  case  of  double  insurance,  the  several  insur- 
ers are  liable  to  pay  losses  thereon  as  follows: 

1.  In  fire  insurance,  each  insurer  must  contribute  ratably 
towards  the  loss,  without  regard  to  the  dates  of  the  several 
policies. 

2.  In  marine  insurance,  the  liability  of  the  several  insurers 
for  a  total  loss,  whether  actual  or  constructive,  where  the 
policies  are  not  simultaneous,  is  in  the  order  of  the  dates  of 
the  several  policies;  no  liability  attaching  to  a  second  or 
other  subsequent  policy,  except  as  to  the  excess  of  the  loss 
over  the  amount  of  all  previous  policies  on  the  same  inter- 
est. If  two  or  more  policies  bear  date  upon  the  same  date, 
they  are  deen'.ed  to  be  simultaneous,  and  the  liability  of  in- 
surers on  simultaneous  policies  is  to  contribute  ratably  with 
each  other.  The  insolvency  of  any  of  the  insurers  does  not 
aflfect  the  proportionate  liability  of  the  other  insurers.  The 
liability  of  all  insurers  on  the  same  marine  interest  for  a 
partial   or   average   loss,   is   to   contribute   ratably. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  257. 


856 


Tit.XI,ch.I,art.Xn.]       REINSURANCK.  §§2646-2649 


ARTICLE  XII. 

REINSURANCE. 

§  2646.  Reinsurance,   what. 

§  2647.  Disclosures   required. 

§  2648.  Reinsurance  presumed  to  be  against  lial)ility. 

§  2649.  Original  insured  has  no  interest. 

§2646.  REINSURANCE,  WHAT.  A  contract  of  rein- 
surance is  one  by  which  an  insurer  procures  a  third  person 
to  insure  him  against  loss  or  lial)ility  by  reason  of  such  orig- 
inal insurance. 

History:     Enacted  March   21,  1872. 

§2647.  DISCLOSURES  REQUIRED.  Where  an  insurer 
obtains  reinsurance,  he  must  communicate  all  the  representa- 
tions of  the  original  insured,  and  also  all  the  knowledge  and 
information  he  possesses,  whether  previously  or  subsequently 
acquired,   which   are   material   to   the   risk. 

History:     Enacted  March   21,   1872. 

§2648.  REINSURANCE  PRESUMED  TO  BE 
AGAINST  LIABILITY.  A  reinsurance  is  presumed  to  be 
a  contract  of  indemnity  *  against  liability,  and  not  merely 
against  damage. 

History:     Enacted  March   21,   1872. 

§2649.     ORIGINAL    INSURED    HAS    NO    INTEREST. 

The  original  insured   has   no   interest  in   a   contract   of   rein- 
stirance. 

History:.     Enacted  March   21,  1872. 


857 


§2655  CIVIL    CODE.  [Div.III.Pt.IV. 

CHAPTER  II. 
MARINE  INSURANCE. 

[Commissioners'  note:  "Rules  respecting  marine  insurance 
which  are  but  applications  of  the  principles  of  international 
law  to  this  subject  are  not  embraced  in  these  provisions,  as 
they  are  not  within  the  scope  of  a  municipal  statute."] 

Article  I.  Definition  of  Marine  Insurance,  §  2655. 

II.  Insurable   Interest,  §§2659-2665. 

III.  Concealment,  §§2669-2672. 

IV.  Representations,   §§  2676-2677. 

V.  Implied   Warranties,   §§2681-2688. 

VI.  The  Voyage,   and   Deviation,    §§  2692-2697. 

VII.  Loss,   §§2701-2712. 

VIII.  Abandonment,   §§2716-2732. 

IX.  Measure   of    Indemnity,    §§  2736-2746. 


ARTICLE  I. 

DEFINITION    OF    MARINE    INSURANCE. 
§  2655.     Marine    insurance,   what. 

§2655.  MARINE  INSURANCE,  WHAT.  Marine  insur- 
ance is  an  insurance  agamst  risks  connected  with  naviga- 
tion, to  which  a  ship,  cargo,  freightage,  profits,  or  other  in- 
surable interest  in  movable  property,  may  be  exposed  dur- 
mg  a  certain  voyage  or  a  fixed  period  .of  time. 

History:     Enacted  March  21,  1872. 
858 


Tit.XI,ch.II,art.II.]     INSURABLE  INTEREST.         §§2659-2662 


ARTICLE  II. 

INSURABLE  INTEREST. 

2659.  Insurable   interest   in   a   sliip. 

2660.  Interest  reduced  by  bottomry. 

2661.  Freightage,    what. 

2662.  Expected  freightage. 

2663.  Interest  in  expected  freiglitage,  what. 

2664.  Insurable    interest    in    profits. 

2665.  Insurable  interest  of  charterer. 


§2659.     INSURABLE    INTEREST    IN    A    SHIP.     The 

owner  of  a  ship  has  in  all  cases  an  insurable  interest  in  it, 
even  when  it  has  been  chartered  by  one  who  covenants  to 
pay  him  its  value  in  case  of  loss. 

History:      Enacted  March   21,   1872. 


§2660.     INTEREST  REDUCED  BY  BOTTOMRY.    The 

instirable  interest  of  the  owner  of  a  ship  hypothecated  by 
bottomry  is  only  the  excess  of  its  value  over  the  amount 
secured  by  bottomry. 

History:      Enacted  March   21,   1872. 

§2661.  FREIGHTAGE,  WHAT.  Freightage,  in  the  sense 
of  a  policy  of  marine  insurance,  signifies  all  the  benefit  de- 
rived by  the  owner,  either  from  the  chartering  of  the  ship 
cr  its  employment  for  the  carriage  of  his  own  goods  or  those 
of  others. 

History:     Enacted  March  21,   1872. 

§2662.  EXPECTED  FREIGHTAGE.  The  owner  of  a 
ship   has   an   insurable   interest   in   expected   freightage   which 

859 


§§2663-2665  civil  code.  [Div.III.Pt.IV. 

he  would  have   certainly   earned  but  for  the   intervention   ol 
a  peril  insured  against. 

History:      Enacted  March   21,   1872. 

§2663.  INTEREST  IN  EXPECTED  FREIGHTAGE, 
WHAT.  The  interest  mentioned  in  the  last  section  exists, 
in  the  case  of  a  charter  party,  when  the  ship  has  broken 
ground  on  the  chartered  voyage,  and  if  a  price  is  to  be  paid 
for  the  carriage  of  goods  when  they  are  actually  on  board, 
or  there  is  some  contract  for  putting  them  on  board,  and 
both  ship  and  goods  are  ready  for  the  specified  voyage. 

History:      Enacted  March   21,   1872. 

§2664.     INSURABLE   INTEREST    IN    PROFITS.      One 

who  has  an  interest  in  the  thing  from  which  profits  are  ex- 
pected  to   proceed,   has   an    insurable    interest   in   the   profits. 

History:      Enacted  March   21,   1872. 

§2665.  INSURABLE  INTEREST  OF  CHARTERER. 
The  charterer  of  a  ship  has  an  insurable  interest  in  it,  to  the 
extent  that  he  is  liable   to  be  damnified  by  its  loss. 

History:      Enacted  March   21,   1872. 


860 


Tit.XLch.II.art.IIL]      CONCEALMENT.  §§2669-2672 


ARTICLE  III. 

CONCEALMENT. 

§  2669.  Information  must  be  communicated. 

§  2670.  Material    information. 

§  2671.  Presumption   of  knowledg-e   of  lo.ss. 

§  2672.  Concealments  which   only  affect  the   risk   in   question. 

§2069.  INFORMATION  MUST  BE  COMMUNI- 
CATED. In  marine  insurance  each  party  is  bound  to  com- 
municate, in  addition  to  what  is  required  by  section  two 
thousand  five  hundred  and  sixty-three,  all  the  information 
which  he  possesses,  material  to  the  risk,  except  such  as  is 
mentioned  in  section  two  thousand  five  hundred  and  sixty- 
Jour,  and  to  state  the  exact  and  whole  truth  in  relation  to 
;ill  matters  that  he  represents,  or  upon  inquiry  assumes  to 
disclose. 

History:     Enacted  March   21,  1872. 

§2670.  MATERIAL  INFORMATION.  In  marine  in- 
surance, information  of  the  belief  or  expectation  of  a  third 
person,  in   reference  to  a  material   fact,   is   material. 

Historj't     Enacted  March   21,   1872. 

§2671.     PRESUMPTION  OF  KNOWLEDGE  OF  LOSS. 

A  person  insured  by  a  contract  of  iparine  insurance  is  pre- 
sumed to  have  had  knowledge,  at  the  time  of  insuring,  of  a 
prior  loss,  if  tlie  information  might  possibly  have  readied 
him  in  the  usual  mode  of  transmission,  and  at  the  usual 
rate   of  communication. 

History:     Enacted  March  21,   1872. 

§2672.  CONCEALMENTS  WHICH  ONLY  AFFECT 
THE  RISK   IN   QUESTION.     A   concealment  in   a   marine 

861 


§2672  CIVIL  CODE.  [Div.III.Pt.IV. 

insurance,  in  respect  to  any  of  the  following  matters,  does 
not  vitiate  the  entire  contract,  but  merely  exonerates  the 
insurer  from   a  loss   resulting  from   the   risk   concealed: 

1.  The  national  character  of  the  insured; 

2.  The  liability  of  the  thing  insured  to  capture  and  deten- 
tion; 

3.  The  liability  to  seizure  from  breach  of  foreign  laws  of 
trade; 

4.  The  want  of  necessary  documents;  and, 

5.  The  use  of  false  and  simulated  papers. 

History:     Enacted  March  21,  1872. 


862 


Tit.XI,ch.II,arts.IV,V.]  REPRESENTATIONS.  §§2676-2681 


ARTICLE  IV. 

REPRESENTATIONS. 

§  2676.     Effect  of  intentional  falsity. 
§  2677.     Representation  of  expectation. 

§2676.     EFFECT  OF  INTENTIONAL  FALSITY.     If  a 

representation,  by  a  person  insured  by  a  contract  of  marine 
insurance,  is  intentionally  false  in  any  respect,  whether  ma- 
terial or  immaterial,  the  insurer  may  rescind  the  entire  con- 
tract. 

History:      Enacted  March   21,  1872. 

§2677.     REPRESENTATION  OF  EXPECTATION.  The 

eventual  falsity  of  a  representation  as  to  expectation  does 
not,  Ml  the  absence  of  fraud,  avoid  a  contract  of  insurance. 

History;     Enacted  March   21,  1872. 


ARTICLE  V. 

IMPLIED  WARRANTIES. 

§  2681.  Warranty  of  seaworthiness. 

§  2682.  Seaworthiness,  what. 

§  2683.  When  complied  with.     [Exceptions.] 

§  2684.  What   things   are    required    to    constitute   seaworthin(^ss. 

§  2685.  Different    degrees    of   seaworthiness    at    different    stages 

of  the  voyage. 

§  2686.  Unseaworthiness  during  the  voyage. 

§  2687.  Seaworthiness  for  purposes  of  insurance  on  cargo. 

§  2688.  Neutral  papers. 

§268L     WARRANTY    OF   SEAWORTHINESS.     In   ev- 
ery marine  insurance  upon  a  ship   or  freight,  or  freightage. 

863 


§§2682-2684  CIVIL  code.  f Div.III.Pt.IV. 

or  upon  anything  which  is  the  subject  of  marine  insurance, 
a  warranty  is  implied  that  the  ship  is  seawortliy. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1S73-4,  p.  257. 

§2682.     SEAWORTHINESS,     WHAT.      A     ship     is     sea 
worthy  when  reasonably  fit  to  perform  the  services,  and  to 
encounter   the   ordinary   perils   of   the   voyage,    contemplated 
by  the  parties  to  the  policy. 

History:      Enacted  March   21,   1872. 

§2683.     WHEN  COMPLIED  WITH.     [EXCEPTIONS.] 

An  implied  v/arranty  of  seaworthiness  is  complied  with  if 
the  ship  be  seaworthy  at  the  time  of  tlie  commencement  of 
the  risk,  except  in  the  following  cases: 

1.  When  the  insurance  is  made  for  a  specihed  length  of 
time,  the  implied  warranty  is  not  complied  with,  unless  the 
ship  be  seaworthy  at  the  commencement  of  every  voyage 
she   may   undertake   during  that   time;   and, 

2.  When  the  insurance  is  upon  the  cargo,  which,  by  the 
terms  of  the  policy,  or  the  description  of  the  voyage,  or  the 
established  custom  of  the  trade,  is  to  be  transhipped  at  an 
mtermediate  port,  tlie  implied  warranty  is  not  complied  with, 
unless  each  vessel  tipon  which  the  cargo  is  shipped,  or  tran- 
shipped, be  seaworthy  at  the  commencement  of  its  particu- 
lar voyage. 

HLstory:  Enacted  March  21,  1872;  amended  March  30.  1874, 
Code   Amdts.    1S73-4,   p.    258. 

§2684.  WHAT  THINGS  ARE  REQUIRED  TO  CON- 
STITUTE SEAWORTHINESS.  A  warranty  of  seaworthi- 
ness extends  not  only  to  the  condition  of  the  structure  of  the 
ship  itself,  but  requires  that  it  be  properly  laden,  and  pro- 
vided with  a  competent  master,  a  sufficient  number  of  com- 
petent officers  and   seamen,  and   the   requisite   appurtenances 

864 


Tit.XI,ch.II,art.V.]      SEAWORTHINESS.  §§2685-2688 

and  equipments,  such  as  ballast,  cables,  and  anchors,  cord- 
age and  sails,  food,  water,  fuel,  and  lights,  and  other  neces- 
sary or  proper  stores  and  implements  for  the  voyage. 

History:      Enacted  March   21,  1872. 

§2685.  DIFFERENT  DEGREES  OF  SEAWORTHI- 
NESS   AT    DIFFERENT    STAGES    OF    THE    VOYAGE. 

Where  different  portions  of  the  voyage  contemplated  by  a 
policy  differ  in  respect  to  the  things  requisite  to  make  the 
ship  seaworthy  therefor,  a  warranty  of  seaworthiness  is  com- 
plied with  if,  at  the  commencement  of  each  portion,  the  ship 
is  seaworthy  with  reference  to  that  portion. 

History:     Enacted  March   21,  1872. 

§2686.  UNSEAWORTHINESS  DURING  THE  VOY- 
AGE. -When  a  ship  becomes  unseaworthy  during  the  voy- 
age to  which  an  insurance  relates,  an  unreasonable  delay  in 
repairing  the  defect  exonerates  the  insurer  from  liability 
from  any  loss  arising  therefrom. 

History:     Enacted  March   21,  1872. 

§2687.  SEAWORTHINESS  FOR  PURPOSES  OF  IN- 
SURANCE ON  CARGO.  A  ship  which  is  seaworthy  for 
the  purpose  of  an  insurance  upon  tlie  ship  may,  nevertheless. 
by  reason  of  being  unfitted  to  receive  the  cargo,  be  unsea- 
v/orthy  for  the  purpose  of  insurance  upon  the  cargo. 

HLstory:     Enacted   March   21,   1872. 

§2688.  NEUTRAL  PAPERS.  Where  the  nationality  or 
neutrality  of  a  ship  or  cargo  is  expressly  warranted,  it  is 
implied  that  the  ship  will  carry  the  requisite  documents  to 
show  such  nationality  or  neutrality,  and  that  it  will  not  carry 
any  documents  which   cast  reasonable  suspicion   thereon. 

History:     Enacted  March   21,  1872. 

28  865 


§§2692-2695  CIVIL  CODE.  [Div.III.Pt.IV. 


ARTICLE  VI. 

THE  VOYAGE  AND  DEVIATION. 

§  2G92.  Voyage  insured,  how  determined. 

§  2693.  Course    of    sailing-,    how    determined. 

§  2694.  Deviation,  what. 

§  2695.  When  proper. 

§  2696.  When  improper. 

§  2697.  Deviation   exonerates  the  insurer. 

§2692.     VOYAGE     INSURED,     HOW     DETERMINED. 

When  the  voyage  contemplated  by  a  policy  is  described  by 
the  places  of  beginning  and  ending,  the  voyage  insured  is 
one  which  conforms  to  the  course  of  sailing  fixed  by  mercan- 
tile usage  between  those  places. 

HLstory:     Enacted  March  21,  1S72. 

§2693.     COURSE  OF  SAILING,  HOW  DETERMINED. 

If  the  course  of  sailing  is  not  fixed  by  mercantile  usage,  the 
voyage  insured  by  a  policy  is  the  way  between  the  places 
specified  which,  to  a  master  of  ordinary  skill  and  discretion, 
would  seem  the  most  natural,  direct,  and  advantageous. 

History:     Enacted  March  21,  1872. 

§2694.  DEVIATION,  WHAT.  Deviation  is  a  departure 
from  the  course  of  the  voyage  insured,  mentioned  in  the  last 
two  sections,  or  an  unreasonable  delay  in  pursuing  the  voy- 
age, or  the  commencement  of  an  entirely  different  voyage. 

History:     Enacted  March  21,  1S72. 

§2695.     WHEN  PROPER.     A  deviation  is  proper: 
1.  When  caused  by  circumstances  over  which  neither  the 
master   nor   the   owner  of  the   ship   has  any   control; 

866 


Tit.XI,cli.ll,art.\  I.J         DEVIATION.  §§2696,2697 

2.  When  necessary  to  complj'  witli  a  \varrant\-.  ur  lo  avoid 
a  peril,  whether  insured  against  or  not; 

3.  When  made  in  good  faith,  and  upon  reasonable  grounds 
of  belief  in  its  necessity  to  avoid  a  peril;  or, 

4.  When   made    in    good    faith,    for   the   purpose    of    saving 
human  life,  or  relieving  another  vessel  in  distress. 

His<ory:     Enacted  March  21,  1S72. 

§2696.     WHEN  IMPROPER.     Every  deviation  not  speci- 
fied in  the  last  section   is   improper. 

History:     Enacted  March  21,  1<S72. 

§2697.     DEVIATION  EXONERATES  THE  INSURER. 

An  insurer  is  not  liable  for  any  loss  happening  to  a  thing  in- 
sured subsequently  to  an  improper  deviation. 

History:     Enacted  March  21,  1872. 


867 


§§2701-2704  CIVIL  CODE.  [Div.III.Pt.IV. 


ARTICLE  VII. 

LOSS. 

§  2701.  Total  and  partial  loss. 

§  2702.  Partial   loss. 

§  2703.  Actual   and  constructive  total  loss. 

§  2704.  Actual  total  loss,  what. 

§  2705.  Constructive   total   loss. 

§  2706.  Presumed   actual   loss. 

§  2707.  Insurance  on  cargo,   etc.,   when  voyage   is  broken   up. 

§  2708.  Cost  of  reshipment,  etc. 

§  2709.  When  insured  is  entitled  to  payment. 

§  2710.  Abandonment    of    goods    on    insurance    of    profits     [re- 
pealed]. 

§  2711.  Average  loss. 

§  2712.  Insurance  against  total  loss. 

§  2701.     TOTAL  AND  PARTIAL  LOSS.     A  loss  may  be 
either   total    or   partial. 

HLstory:     Enacted  March  21,  1872. 

§2702.     PARTIAL  LOSS.     Every  loss  which  is  not  total 
IS  partial. 

History:     Enacted  March  21,  1872. 


§2703.     ACTUAL      AND      CONSTRUCTIVE      TOTAL 

LOSS.     A  total  loss  maj^  be  either  actual  or  constructive. 

History:     Enacted  March  21,  1872. 

§2704.     ACTUAL  TOTAL  LOSS,  WHAT.    An  actual  to- 
tal loss  is  caused  by: 

1.  A  total  destruction  of  the  thing  insured; 

2.  The   loss   of   the   thing   by   sinking,   or   by   being   broken 
up; 


Tit.XI.ch.II.art.VII.]     LOSS— KINDS    OF.  §§2705-2708 

3.  Any  damage  to  the  thing  which  renders  it  valueless  to 
the  owner  for  the  purposes  for  which  he  held  it;  or, 

4.  Any  other  event  which  entirely  deprives  the  owner  of 
the  possession,  at  the  port  of  destination,  of  the  thing  in- 
sured. 

History:     Enacted  March  21,  1872. 

§2705.  CONSTRUCTIVE  TOTAL  LOSS.  A  construc- 
tive total  loss  is  one  which  gives  to  a  person  insured  a  right 
^o  abandon,  under  section  two  thousand  seven  hundred  and 
seventeen. 

History:     Enacted  March  21,  1872. 

§2706.  PRESUMED  ACTUAL  LOSS.  An  actual  loss 
may  be  presumed  from  the  continued  absence  of  a  ship  with- 
out being  heard  of;  and  the  length  of  time  which  is  sufficient 
to  raise  this  presumption  depends  on  the  circumstances  of 
the  case. 

History:     Enacted  March  21,  1S72. 

§2707.  INSURANCE  ON  CARGO,  ETC.,  WHEN  VOY- 
AGE IS  BROKEN  UP.  When  a  ship  is  prevented,  at  an 
intermediate  port,  from  completing  the  voyage,  by  the  perils 
insured  against,  the  master  must  make  every  exertion  to  pro- 
cure, in  the  same  or  a  contiguous  port,  another  ship,  for  the 
purpose  of  conveying  the  cargo  to  its  destination;  and  the 
liability  of  a  marine  insurer  thereon  continues  after  they  are 
thus  reshipped. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   p.   258. 

§2708.  COST  OF  RESHIPMENT,  ETC.  In  addition  to 
the  liability  mentioned  in  the  last  section,  a  marine  insurer 
is  bound  for  damages,  expenses  of  discharging,  storage,  re- 
shipment,   extra   freightage,  and  all  other   expenses  incurred 

869 


§§2709-2712  CIVIL  CODE.  [Div.l  1 1.Pt.l  V. 

in    saving  cargo    reshipped   pnrsuanl    to    the    last   section,   up 
to  the  amount  insured. 

History:     Enacted  March  21,  1S72. 

§2709.  WHEN  INSURED  IS  ENTITLED  TO  PAY- 
MENT. Upon  an  actual  total  loss,  a  person  insured  is  en- 
titled  to  payment  without  notice   of  abandonment. 

History:     Enacted  March  21,  1872. 

§2710.  ABANDONMENT  OF  GOODS  ON  INSUR- 
ANCE  OF  PROFITS    [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  258. 

§2711.  AVERAGE  LOSS.  Where  it  has  been  agreed  that 
an  insurance  upon  a  particular  thing,  or  class  of  things,  shall 
be  free  from  particular  average,  a  marine  insurer  is  not  li- 
able for  any  particular  average  loss  not  depriving  the  in- 
sured of  the  possession,  at  the  port  of  destination,  of  the 
vyfhole  of  such  thing,  or  class  of  things,  even  though  it  be- 
come entirely  worthless;  but  he  is  liable  for  his  proportion 
of  all  general  average  loss  assessed  upon  the  thing  insured. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  258. 

§2712.  INSURANCE  AGAINST  TOTAL  LOSS.  An  in- 
surance confined  in  terms  to  an  actual  total  loss,  does  not 
cover  a  constructive  total  loss,  but  covers  any  loss  which 
necessarily  results  in  depriving  the  insured  of  the  possession, 
at  the  port  of  destination,  of  the  entire  thing  insured. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.   1873-4,  p.   259. 


870 


Tit.XI,ch.TI,art.VIII.]  ABANDONMENT.  §§2716,2717 


ARTICLE  VIII. 

ABANDONMENT. 

§  2716.  Abandonment,  what. 

§  2717.  When   insured  may  abandon. 

§  271S.  Must  be  unqualified. 

§  2719.  When  may  be  made. 

§  2720.  Abandonment   may   be   defeated. 

§  2721.  How  made. 

§  2722.  Requisites  of  notice. 

§  2723.  No  other  cause  can  be  relied  on. 

§  2724.  Effect. 

§  2725.  Waiver  of  formal   abandonment. 

§  2726.  Agents  of   the  insured  become  agents  of  the   insurer. 

§  2727.  Acceptance  not  necessary. 

§  2728.  Acceptance  conclusive. 

§  2729.  Accepted   abandonment,    irrevocable. 

§  2730.  Freightage,  how  affected   by  abandonment  of  ship. 

§  2731.  Refusal  to  accept. 

§  2732.  Omission    to   abandon. 

§2716.  ABANDONMENT,  WHAT.  Abandonment  is 
the  act  by  which,  after  a  constructive  total  loss,  a  person 
insured  by  contract  of  marine  insurance  declares  to  the  in- 
surer that  he  relinquishes  to  him  his  interest  in  the  thing 
insured. 

History:     Enacted  March  21,  1872. 

§2717.  WHEN  INSURED  MAY  ABANDON.  A  person 
insured  by  a  contract  of  marine  insurance  may  abandon  the 
tiling  insured,  or  any  particular  portion  thereof  separately 
valued  by  the  policy,  or  otherwise  separately  insured,  and 
recover  for  a  total  loss  thereof,  when  the  cause  of  tiie  loss 
is  a  peril  insured  against: 

1.  If  more  than  half  thereof  in  value  is  actually  lost,  or 
would  have  to  be  expended  to  recover  it  from  the  peril; 

2.  If  it  is  injured  to  such  an  extent  as  to  reduce  its  value 
more  than  one  half; 

871 


§§2718-2721  CIVIL  CODE.  [Div.III.Pt.IV. 

3.  If  the  thing  insured,  being  a  ship,  the  contemplated 
voyage  cannot  be  lawfully  performed  without  incurring  an 
expense  to  the  insured  of  more  than  half  the  value  of  the 
thing  abandoned,  or  without  incurring  a  risk  which  a  pru- 
dent man  would  not  take  under  the   circumstances;   or, 

4.  If  the  thing  insured,  being  cargo  or  freightage,  the  voy- 
age cannot  be  performed  nor  another  ship  procured  by  the 
master,  within  a  reasonable  time  and  with  reasonable  dili- 
gence, to  forward  the  cargo,  without  incurring  the  like  ex- 
pense or  risk.  But  freightage  cannot  in  any  case  be  aban- 
doned, unless  the  ship  is  also  abandoned. 

History:     Enacted  March  21^  1872. 

§2718.  MUST  BE  UNQUALIFIED.  An  abandonment 
must   be  neither  partial  nor  conditional. 

History:     Enacted  March  21,  1872. 

§2719.  WHEN  MAY  BE  MADE.  An  abandonment  must 
be  made  within  a  reasonable  time  after  the  information  of 
the  loss,  and  after  the  commencement  of  the  voyage,  and  be- 
fore the  party  abandoning  has  information  of  its  completion. 

History:     Enacted  March  21,  1872. 

§2720.     ABANDONMENT      MAY      BE       DEFEATED. 

Where  the  information  upon  which  an  abandonment  has 
been  made  proves  incorrect,  or  the  thing  insured  was  so  far 
restored  when  the  abandonment  was  made  that  there  was 
then  in  fact  no  total  loss,  the  abandonment  becomes  inef- 
fectual. 

History:     Enacted  March  21,  1872. 

§  2721.  HOW  MADE.  Abandonment  is  made  by  giving 
notice  thereof  to  the  insurer,  which  maj-  be  done  orally,  or 
in  writing. 

History:     Enacted  March  21,  1872. 

872 


Tit.XI,ch.II,art.VIII.]     WAIVER  OF.  %%2722-2727 

§2722.  REQUISITES  OF  NOTICE.  A  notice  of  aban- 
donment must  be  explicit,  and  must  specify  the  particular 
cause  of  the  abandonment,  but  need  state  only  enough  to 
show  that  there  is  probable  cause  therefor,  and  need  not  be 
accompanied  with  proof  of  interest  or  of  loss. 

History:     Enacted  March  21^  1S72. 

§2723.     NO    OTHER    CAUSE    CAN    BE    RELIED    ON. 

An  abandonment  can  be  sustained  only  upon  the  cause  speci- 
fied in  the  notice  thereof. 

History:     Enacted  March  21,  1872. 

§  2724.  EFFECT.  An  abandonment  is  equivalent  to  a 
transfer,  by  the  insured,  of  his  interest,  to  the  insurer,  with 
all  the  chances  of  recovery  and  indemnity. 

History:     Enacted  March  21,  1872. 

§2725.     WAIVER  OF  FORMAL  ABANDONMENT.     If 

a  marine  insurer  pays  for  a  loss  as  if  it  were  an  actual  total 
loss,  he  is  entitled  to  whatever  may  remain  of  the  thing  in- 
sured, or  its  proceeds  or  salvage,  as  if  there  had  been  a 
formal  abandonment. 

History:     Enacted  March  21,  1872. 


§2726.  AGENTS  OF  THE  INSURED  BECOME 
AGENTS  OF  THE  INSURER.  Upon  an  abandonment,  acts 
done  in  good  faith  by  those  who  were  agents  of  the  insured 
in  respect  to  the  thing  insured,  subsequent  to  the  loss,  are 
at  the  risk  of  the  insurer,  and  for  his  benefit. 

History:     Enacted  March  21,  1872. 

§2727.  ACCEPTANCE  NOT  NECESSARY.  An  accept- 
ance of  an  abandonment  is  not  necessary  to  the  rights  of  the 

873 


§§2728-2732  civil  code.  [Div.III,Pt.IV. 

insured,   and    is   nol    to   1)0   presumed    from    the    mere    silence 
f'f  the  insurer,  upon   his  receiving  notice  of  abandonment. 

History:     Enacted  March  21,  1872. 

§2728.  ACCEPTANCE  CONCLUSIVE.  The  acceptance 
of  an  abandonment,  whether  express  or  implied,  is  conclu- 
sive upon  the  parties,  and  admits  the  loss  and  the  suf^ciency 
ot  the  abandonment. 

Hlftory:     Enacted  March  21,  1872. 

§2729.  ACCEPTED  ABANDONMENT,  IRREVO- 
CABLE. An  abandonment  once  made  and  accepted  is  irre- 
vocable, unless  the  ground  upon  which  it  was  made  proves 
to  be  unfounded. 

History:     Enacted  March  21,  1872. 

§  2730.  FREIGHTAGE,  HOW  AFFECTED  B  Y 
ABANDONMENT  OF  SHIP.  On  an  accepted  abandon- 
ment of  a  ship,  freightage  earned  previous  to  the  loss  be- 
longs to  the  insurer  thereof;  but  freightage  subsequently 
earned  belongs  to  the  insurer  of  the  ship. 

History:     Enacted  March  21,  1872. 


§2731.  REFUSAL  TO  ACCEPT.  If  an  insurer  refuses 
to  accept  a  valid  abandonment,  he  is  liable  as  upon  an  actual 
total  loss,  dedticting  from  the  amount  any  proceeds  of  the 
thing  insured  which  may  have  come  to  the  hands  of  the  in- 
sured. 

History;     Enacted  March  21,  1872. 

§2732.  OMISSION  TO  ABANDON.  If  a  person  insured 
omits  to  abandon,  he  may  nevertheless  recover  his  actual 
loss. 

History:     Enacted  March  21,  1872. 

874 


Tit.XLch.II.art.IX.J  INDEMNITY.  §§2736-2738 


ARTICLE  IX. 

MEASURE   OF   INDEMNITY. 

§  2736.  Valuation,  when  conclusive. 

§  2737.  Partial  loss. 

§  2738.  Profits. 

§  2739.  Valuation  apportioned. 

§  2740.  Valuation  applied   to  profits. 

§  2741.  Estimating  loss  under  an  open  policy. 

§  2742.  Arrival    of    thing    damaged. 

§  2743.  Labor  and  expenses. 

§  2744.  General  average  . 

§  2745.  Contribution. 

§  2746.  One  third  new  for  old. 

§2736.  VALUATION,  WHEN  CONCLUSIVE.  A  valu- 
ation in  a  policy  of  marine  insurance  is  conclusive  between 
the  parties  thereto  in  the  adjustment  of  either  a  partial  or 
total  loss,  if  the  insured  has  some  interest  at  risk,  and  there 
IS  no  fraud  on  his  part;  except  that  when  a  thing  has  been 
Iiypothecated  by  bottomry  or  respondentia,  before  its  in- 
surance, and  without  the  knowledge  of  the  person  actually 
procuring  the  insurance,  he  may  show  the  real  value.  But  a 
valuation  frai:dulent  in  fact  entitles  the  instxrer  to  rescind 
the  contract. 

History:     Enacted  March  21,  1872. 

§  2737.  PARTIAL  LOSS.  A  marine  insurer  is  liable  upon 
a  partial  loss,  only  for  such  proportion  of  the  amount  insured 
by  him  as  the  loss  bears  to  the  value  of  the  whole  interest  of 
the  insured  in  the  property  insured. 

History:     Enacted  March  21,  1872. 

§2738.  PROFITS.  When  profits  are  separately  insured 
in  a  contract  of  marine  insurance,  the  insured  is  entitled  to 

875 


§§2739-2741  civil  code.  [Div.III,Pt.IV. 

recover,  in  case  of  loss,  a  proportion  -of  such  profits  equiva- 
lent to  the  proportion  which  the  value  of  the  property  lost 
bears  to  the  value  of  the  whole. 

History:     Enacted  March  21,  1872. 

§2739.  VALUATION  APPORTIONED.  In  case  of  a 
valued  policy  of  marine  insurance  on  freightage  or  cargo,  if 
a  part  only  of  the  subject  is  exposed  to  risk,  the  valuation 
applies  only  in  proportion  to  such  part. 

HLstory:     Enacted  March  21,  1872. 

§2740.  VALUATION  APPLIED  TO  PROFITS.  When 
profits  are  valued  and  insured  by  a  contract  of  marine  in- 
surance, a  loss  of  them  is  conclusively  presumed  from  a  loss 
of  the  property  out  of  which  they  were  expected  to  arise,  and 
the  valuation   fixes  their  amount. 

History:     Enacted  March  21,  1872. 

§274L  ESTIMATING  LOSS  UNDER  AN  OPEN  POL- 
ICY. In  estmiating  a  loss  under  an  open  policy  of  marine 
insurance,  the  following  rules  are  to  be  observed: 

1.  The  value  of  a  ship  is  its  value  at  the  beginning  of  the 
risk,  including  all  articles  or  charges  which  add  to  its  per- 
manent value,  or  which  are  necessary  to  prepare  it  for  the 
voyage  insured; 

2.  The  value  of  cargo  is  its  actual  cost  to  the  insured,  when 
laden  on  board,  or  where  that  cost  cannot  be  ascertained,  its 
maj-ket  value  at  the  time  and  place  of  lading,  adding  the 
charges  incurred  in  purchasing  and  placing  it  on  board,  but 
without  reference  to  any  losses  incurred  in  raising  money 
for  its  purchase,  or  to  any  drawback  on  its  exportation  or 
to  the  fluctuations  of  the  market  at  the  port  of  destination, 
or  to  expenses   incurred  on  the  wa}'  or  on   arrival; 

3.  The  value  of  freightage  is  the  gross  freightage,  exclusive 

876 


Tit.XI,ch.II,art.IX.]    GENERAL  AVERAGE.  §§2742-2745 

of  primage,  without  reference  to  the  cost  of  earning  it;  and, 
4.  The  cost  of  insurance  is  in  each  case  to  be  added  to  the 
value  thus  estimated. 

History:     Enacted  March  21,  1S72. 

§2742.  ARRIVAL  OF  THING  DAMAGED.  If  cargo  in- 
sured against  partial  loss  arrives  at  the  port  of  destination  in 
a  damaged  condition,  the  loss  of  the  insured  is  deemed  to  be 
the  same  proportion  of  the  value  which  the  market  price  at 
that  port,  of  the  thing  so  damaged,  bears  lo  the  market 
price  it  would  have  brought  if  sound. 

History:     Enacted  March  21,  1872. 

§2743.  LABOR  AND  EXPENSES.  A  marine  insurer  is 
liable  for  all  the  expenses  attendant  upon  a  loss  which  forces 
the  ship  into  port  to  be  repaired;  and  where  it  is  agreed 
that  the  insured  maj^  labor  for  the  recovery  of  the  property, 
the  insurer  is  liable  for  the  expense  incuired  thereby,  such 
expense,  in  either  case,  being  in  addition  to  a  total  loss  if 
that  afterwards  occurs. 

History:     Enacted  March  21,  1872. 

§2744.  GENERAL  AVERAGE.  A  marine  insurer  is  li- 
able for  a  loss  falling  upon  the  insured,  through  a  contribu- 
tion in  respect  to  the  thing  insured,  required  to  be  made  by 
him  towards  a  general  average  loss  called  for  I)y  a  peril  in- 
sured against. 

History:     Enacted  March  21,  1872. 

§2745.  CONTRIBUTION.  Where  a  person  insured  by 
a  contract  of  marine  insurance  has  a  demand  against  others 
for  contribution,  he  may  claim  the  whole  loss  from  the  in- 
surer, subrogating  him  to  his  own  right  to  contribution.  But 
no  such  claim  can  be  made  upon  the  insurer  after  the  separ- 

877 


§2746  CIVIL    CODE.  [Div.III,Pt.lV. 

alion  of  tlic  interests  liable  to  contribution,  nor  when  the  in- 
sured, having  the  right  and  opportunity  to  enforce  contribu- 
tion from  others,  has  neglected  or  waived  the  (the)  exercise 
of  that  right. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.,  1S73-4,  p.  259. 

§  2746.  ONE  THIRD  NEW  FOR  OLD.  In  the  case  of 
a  partial  loss  of  a  ship  or  its  equipments,  the  old  materials 
are  to  be  applied  towards  payment  for  the  new,  and  whether 
the  ship  is  new  or  old,  a  marine  insurer  is  liable  for  only 
two  thirds  of  the  remaining  cost  of  the  repairs,  except  that 
he  must  pay  tor  anchors  and  cannon  in  full,  and  for  sheath- 
ing metal  at  a  depreciation  of  only  two  and  one  half  per 
cent  for  each  month  that  it  has  been  fastened  to  the  ship. 

History:     Enacted  March  21,  1872. 


878 


Tit.XI.ch.III.]  RISK— ALTERING.  §§2752-2755 


CHAF'TP:r   III. 

FIRE   INSURANCE. 

2752.  False   representations   [repealed]. 

2753.  Alteration  increasing  risk. 

2754.  Alteration  not  increasing  risk. 

2755.  Acts  of  the  insured. 

2756.  Measure  of  indemnity. 

2757.  Value    of    interest   in    policy   of    insurance,    how    may    be 

fixed.      Total   or   partial   loss. 


§2752.     FALSE  REPRESENTATIONS   [repealed]. 

History:      Enacted    March    21,    1872;    reepaled  March    30,    1874, 
Code  Amdts.,  1873-4,  p.  259. 


§2753.  ALTERATION  INCREASING  RISK.  An  alter 
ation  in  the  use  or  condition  of  a  thing  insured  from  that  to 
which  it  is  limited  by  the  policy,  made  without  the  consent 
of  the  insurer,  by  means  within  the  control  of  the  insured, 
and  increasing  the  risk,  entitles  an  insurer  to  rescind  a  con- 
tract of  fire   insurance. 

HLstory:     Enacted  March  21,  1872. 


§2754.     ALTERATION  NOT  INCREASING  RISK.     An 

alteration  in  the  use  or  condition  of  a  thing  insured  from 
ihat  to  which  it  is  limited  by  the  policy,  which  does  not  in- 
crease the  risk,  does  not  afifect  a  contract  of  fire  insurance. 

History:     Enacti'd  March   21,  1872. 


§2755.     ACTS    OF   THE   INSURED.     A    contract   of   fire 
insurance   is   not   affected    by   any   act    of   the   insured   subse- 

879 


§§2756,2757  •    civil  code.  [Div.III.Pt.IV. 

quent  to  the  execution  of  the  policy,  which  does  not  violate 
its  provisions,  even  though  it  increases  the  risk  and  is  the 
cause  of  a  loss. 

History:     Enacted  March  21,  1872. 


§275€.  MEASURE  OF  INDEMNITY.  If  there  is  no 
\aluation  in  the  policy,  the  measure  of  indemnity  in  an  in- 
surance against  lire  is  the  expense  it  would  be  to  the  insured 
at  the  time  of  the  commencement  of  the  fire  to  replace  the 
thing  lost  or  injured  in  the  condition  in  which  it  was  at  the 
time  of  the  injury;  but  the  effect  of  a  valuation  in  a  policy 
of  fire  insurance  is  the  same  as  in  a  policy  of  marine  insur- 
ance. 

History:  Enacted  March  21,  1872;  amended  April  15,  1909, 
Stats,    and   Amdts.    1909,   p.    914.      In   effect   immediately. 


§2757.  VALUE  OF  INTEREST  IN  POLICY  OF  IN- 
SURANCE, HOW  MAY  BE  FIXED.  TOTAL  OR  PAR- 
TIAL LOSS.  \\'henever  the  insured  desires  to  have  a  valu- 
ation named  in  his  policy,  insuring  any  building  or  structure 
against  fire,  he  may  require  such  building  or  structure  to  be 
examined  by  the  insurer  and  the  value  of  the  insured's  in- 
terest therein  shall  be  thereupon  fixed  by  the  parties.  The 
cost  of  such  examination  shall  be  paid  for  by  the  insured. 
A  clause  shall  be  inserted  in  such  poHc}'  stating  substan- 
tially that  the  value  of  the  insured's  interest  in  such  build- 
ing or  structure  has  been  thus  fixed.  In  the  absence  of  any 
change  increasing  the  risk  without  the  consent  of  the  in- 
surer or  of  fraud  on  the  part  of  the  insured,  then  in  case 
of  a  total  loss  tinder  such  policy,  the  whole  amount  so  in- 
sured upon  the  insured's  interest  in  such  building  or  struct- 
ure, as  stated  in  the  policy  upon  which  the  insurers  have  re- 
ceived a  premium,  shall  be  paid,  and  in  case  of  a  partial  loss 
the  full  amount  of  the  partial  loss  shall  be  so  paid,  and  in 
case   there   are   two  or   more  policies   covering  the   insured's 


Tit.XI,ch.III.]  TOTAL,    ETC.,    LOSS.  §2757 

interest  therein,  each  policy  shall  contribute  pro  rata  to  the 
payment  of  such  whole  or  partial  loss.  But  in  no  case 
shall  the  insurer  be  required  to  pay  more  than  the  amount 
thus  stated  in  such  policy.  This  section  shall  not  prevent 
the  parties  from  stipulating  in  such  policies  concerning  the 
repairing,  rebuilding  or  replacing  buildings  or  structures 
wholly  or  partially  damaged  or  destroyed. 

History:      Enacted   March    23,    1901,   Stats,    and    Amdts.    1900-1, 
p.  572. 


881 


§§2762-2764  civil  (^de  [Div.IIl.Pt.IV. 


CHAPTP:R  TV. 

LIFE    AND    HEALTH    INSURANCE. 

§  2762.  Insurance  upon   life,  when  payable. 

§  2763.  Insurable  interest. 

§  2764.  Assignee,  etc.,  of  life  policy  need  liave  no  interest. 

§  2765.  Notice  of  transfer. 

§  2766.  Measure  of  indemnity. 

§2762.     INSURANCE  UPON  LIFE,  WHEN  PAYABLE. 

An  insurance  upon  life  may  be  made  payable  on  the  death 
of  the  person,  or  on  his  surviving  a  specified  period,  or 
periodically  so  long  as  he  shall  live,  or  otherwise  contin- 
gently on  the  continuance  or  determination  of  life. 

History:     Enacted  March  21,  1872. 

§2763.  INSURABLE  INTEREST.  Every  person  has 
an  insurable  interest  in  the  life  and  health: 

1.  Of  himself; 

2.  Of  any  person  on  whom  he  depends  wholly  or  in  part 
tor  education   or  support; 

3.  Of  any  person  under  a  legal  obligation  to  him  for  the 
payment  of  money,  or  respecting  property  or  services,  of 
which  death  or  illness  might  delay  or  prevent  the  perform- 
aiTce;  and, 

4.  Of  any  person  upon  whose  life  any  estate  or  interest 
vested  in  him  depends. 

Hislory:     Enacted  March  21,  1S72. 

§2764.  ASSIGNEE,  ETC.,  OF  LIFE  POLICY  NEED 
HAVE  NO  INTEREST.  A  policy  of  insurance  upon  life 
or  health   may  pass   by   transfer,   will,   or   succession   to   any 


Tit.XI,ch.IV.]  TRANSFER— INDEMNITY.  §§2765,2766 

person,  whether  he  has  an  insurable  interest  or  not,  and 
such  person  may  recover  upon  it  whatever  tlie  insured  might 
have  recovered. 

History:     Enacted  March  21,  1S72. 

§  2765.  NOTICE  OF  TRANSFER.  Notice  to  an  insurer 
of  a  transfer  or  bequest  thereof  is  not  necessary  to  preserve 
the  validity  of  a  policy  of  insurance  upon  life  or  health,  un- 
less  thereby   expressly   required. 

History:     Enacted  March  21,  1872. 

§2766.  MEASURE  OF  INDEMNITY.  Unless  the  in- 
terest of  a  person  insured  is  susceptible  of  exact  pecuniary 
measurement,  the  measure  of  indemnity  under  a  policy  of 
insurance  upon  life  or  health  is  the  sum  fixed  in  the  policy. 

History:     Enacted  March  21,  1872. 


883 


%%2772-277A  civil  code  [Div.III.Pt.IV. 


TITLE  XII. 

INDEMNITY. 

2772.  Indemnity,  what. 

2773.  Indemnity  for  a  future  wrongful  act  void. 

2774.  Indemnity  for  a  past  wrongful  act  valid.     . 

2775.  Indemnity  extends  to  acts  of  agents. 

2776.  Indemnity  to  several. 

2777.  Person    indemnifying    liable    Jointly    or    severally    v/ith 

person   indemnified. 

2778.  Rules  for  interpreting  agreement  of  indemnity. 

2779.  When  person  indemnifying  is  a  surety. 

2780.  Bail,  what. 

2781.  How  regulated. 


§2772.  INDEMNITY.WHAT.  Indemnity  is  a  conlraci 
I>y  which  one  engages  to  save  another  from  a  legal  conse- 
quence of  the  conduct  of  one  of  the  parties,  or  of  some 
other   person. 

History:     Enacted  March  21,  1872. 

§2773.     INDEMNITY   FOR   A    FUTURE   WRONGFUL 

ACT  VOID.  An  agreement  to  indemnify  a  person  against 
an  act  thereafter  to  be  done,  is  void,  if  the  act  be  known 
by  such  person  at  the  time  of  doing  it  to  be  unlawful. 

History!  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   259. 

§2774.  INDEMNITY  FOR  A  PAST  WRONGFUL 
ACT  VALID.  An  agreement  to  indemnify  a  person  against 
an  act  already  done,  is  valid,  even  though  the  act  was  known 
to  be  wrongful,  unless  it  was  a  felony. 

History:     Enacted  March  21,  1872. 

884 


Tit.XIL]  INDEMNITY— RULES   OF.  §§2775-2778 

§2775.  INDEMNITY  EXTENDS  TO  ACTS  OF 
AGENTS.  An  agreement  to  indemnify  against  the  acts  of 
a  certain  person,  applies  not  only  to  his  acts  and  their  con- 
sequences, but  also  to  those  of  his  agents. 

History:     Enacted  March  21,  1872. 

§  2776.  INDEMNITY  TO  SEVERAL.  An  agreement  to 
indemnify  several  persons  applies  to  each,  unless  a  contrary 
intention    appears. 

History:     Enacted  March  21,  1872. 

§2777.  PERSONS  INDEMNIFYING  LIABLE  JOINT- 
LY OR  SEVERALLY  WITH  PERSON  INDEMNIFIED. 

One  who  indemnifies  another  against  an  act  to  be  done  by 
the  latter,  is  liable  jointly  with  the  person  indemnified,  and 
separately,  to  every  person  injured  by  such  act. 

History:     Enacted  March  21;  1872. 

§2778.  RULES  FOR  INTERPRETING  AGREEMENT 
OF  INDEMNITY.  In  the  interpretation  of  a  contract  of 
indemnity,  the  following  rules  are  to  be  applied,  unless  a 
contrary   interition   appears: 

1.  Upon  an  indemnity  against  liability,  expressly,  or  in 
other  equivalent  terms,  the  person  indemnified  is  entitled 
to  recover  upon  becoming  liable; 

2.  Upon  an  indemnity  against  claims,  or  demands,  or  dam- 
ages, or  costs,  expressly,  or  in  other  equivalent  terms,  the 
person  indemnified  is  not  entitled  to  recover  without  pay- 
ment thereof; 

3.  An  indemnity  against  claims,  or  demands,  or  liability, 
expressly,  or  in  other  equivalent  terms,  embraces  the  costs 
of  defense  against  such  claims,  demands,  or  liability  incurred 
in  good  faith,  and  in  the  exercise  of  a  reasonable  discretion; 

4.  The  person  indemnifying  is  bound,  on  request  of  the 
person  indemnified,  to  defend  actions  or  proceedings  brought 

885 


§§2779.2780  civil   code  [Div.III.Pt.IW 

against  the  latter  in  respect  to  the  matters  embraced  by  the 
indemnity,  but  the  person  indemnified  has  the  right  to  con- 
duct such  defenses,  if  he  chooses  to  do  so; 

5.  If,  after  request,  the  person  indemnifying  neglects  to 
defend  the  person  indemnified,  a  recovery  against  the  latter 
[,]  suffered  by  him  in  good  faith,  is  conclusive  in  his  favor 
against  the  former; 

6.  If  the  person  indemnifymg,  whether  he  is  a  principal  or 
a  surety  in  the  agreement,  has  not  reasonable  notice  of  the 
action  or  proceeding  against  the  person  indemnified,  or  is 
not  allowed  to  control  its  defense,  judgment  against  the  lat- 
ter is  only  presumptive  evidence  against  the  former; 

7.  A  stipulation  that  a  judgment  against  the  person  in- 
demnified shall  be  conclusive  upon  the  person  indemnifying, 
is  inapplicable  if  he  had  a  good  defense  upon  the  merits, 
which  by  want  of  ordinary  care  he  failed  to  establish  in  the 
action. 

History:     Enacted  March  21.  1S72. 

§2779.     WHEN      PERSON      INDEMNIFYING      IS     A 

SURETY.  Where  one,  at  the  request  of  another,  engages 
to  answer  in  damages,  whether  liquidated  or  unliquidated, 
for  any  violation  of  duty  on  the  part  of  the  latter,  he  is 
entitled  to  be  reimbursed  in  the  same  manner  as  a  surety,  for 
whatever  he  may  pay. 

History:     Enacted  March  21,  1872. 

§2780.  BAIL,  WHAT.  Upon  those  contracts  of  indem- 
nity which  are  taken  in  legal  proceedings  as  security  for  the 
performance  of  an  obligation  imposed  or  declared  by  the 
tribunals,  and  known  as  undertakings  or  recognizances,  the 
sureties  are  called  bail. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  416,  held 
unconstitutional,   see   history,    §  4,  ante. 


Tit.XIT.l  REGULATION  OF.  §2781 

§2781.  HOW  REGULATED.  The  obligations  of  hail  arc 
governed   hy   the  statutes  specially   applicable  thereto. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commi!;- 
.'iion,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-],  p.  416,  held 
unconstitutional,   see  history,   §  4  ante. 


887 


§2787  CIVIL  CODE  [Div.IILPt.IV 


TITLE   XIII. 

GUARANTY 

Chapter  I.     Guaranty    in     General,    §§2787-2825. 
II.     Suretyship,    §§2§31-2866. 


CHAPTER   I. 

GUARANTY  IN  GENERAL. 

Article  I.  Definition  of  Guaranty,  §§2787-2788. 

II.  Creation  of  Guaranty,  §§2792-2795. 

III.  Interpretation  of  Guaranty,   §§2799-2802. 

IV.  Liability  of  Guarantors,  §§2806-2810. 
V.  Continuing  Guaranty,  §§  2814,  2815. 

VI.     Exoneration  of  Guarantors,  §§  2819-2825. 


ARTICLE  I. 

DEFINITION  OF  GUARANTY. 

§  2787.     Guaranty,  what. 

§  2788.     Knowledge    of    principal    not    necessary    to    creation    of 
guaranty. 

§2787.  GUARANTY,  WHAT.  A  guaraanty  is  a  promise 
to  answer  for  tlie  debt,  default,  or  miscarriage  of  another 
person. 

History:  Enacted  March  21,  1872,  founded  upon  §  12,  Act 
April   19,  1850,  Stats.   1850,  p.  267. 


Tit.XIII.ch.I.art.I.]  GUARANTY.  §2788 

§2788.  KNOWLEDGE  OF  PRINCIPAL  NOT  NECES- 
SARY TO  CREATION  OF  GUARANTY.  A  person  may 
become  guarantor  even  without  the  knowledge  or  consent 
cf  the  principal. 

History:  Enacted  March  21,  1872,  founded  upon  Code  Na- 
poleon,  art.   2014. 


889 


§§2792-2794  CIVIL  CODE  [Div.Il  1,1't.I  V 


ARTICLE   II. 

CREATION  OF  GUARANTY. 

§  2792.     Neces.sity  of  a  consideration. 

§  2793.     Guaranty  to  be  in  writing,  etc. 

§  2794.     Engagement  to  answer  for  obligation  of  another,  when 

deemed  original. 
§  2795.     Acceptance  of  guaranty. 

§  2792.  NECESSITY  OF  A  CONSIDERATION.  Where 
a  guaranty  is  entered  into  at  the  same  time  with  the  orig- 
inal obligation,  or  with  the  acceptance  of  the  latter  by  the 
guarantee,  and  foims  with  that  obligation  a  part  of  the  con- 
sideration to  hiin,  no  other  consideration  need  exist.  In  all 
other  cases  there  must  be  a  consideration  distinct  from  that 
cf   the   original  obligation. 

History:     Enacted  March  21,  1S72. 

§2793.  GUARANTY  TO  BE  IN  WRITING,  ETC.  Ex- 
cept as  prescribed  by  the  next  section,  a  guaranty  must  be 
in  writing,  and  signed  by  the  guarantor;  but  the  writing  need 
not  express  a  consideration. 

History:  Enacted  March  21,  1872,  founded  upon  §  12,  Act  April 
19,  1850,  Stats.  1850,  p.  267. 

§2794.  ENGAGEMENT  TO  ANSWER  FOR  OBLIGA- 
TION  OF  ANOTHER,    WHEN    DEEMED    ORIGINAL. 

A  promise  to  answer  for  the  obligation  of  another,  in  any 
of  the  following  cases,  is  deemed  an  original  obligation  of 
the  promisor,  and  need  not  be  in  writing: 

1.  Where  the  promise  is  made  bj^  one  who  has  received 
property  of  another  upon  an  undertaking  to  apply  it  pur- 
suant  to   such  promise;   or   by   one   who   has   received   a   dis- 

890 


Tit.XIII,ch.I.art.IT.l         OBLIGATION.  §2795 

charge  from  an  obligation  in  whole  or  in  part,  in  considera- 
tion of  such  promise; 

2.  Where  the  creditor  parts  with  value,  or  enters  into  an 
obligation,  in  consideration  of  the  obligation  in  respect  to 
which  the  promise  is  made,  in  terms  or  under  circumstances 
such  as  to  render  the  party  making  the  promise  the  principal 
debtor,  and  the  person  in  whose  behalf  it  is  made,  his  suretj'; 

3.  Where  the  promise,  being  for  an  antecedent  obligation 
of  another,  is  made  upon  the  consideration  that  the  party 
receiving  it  cancels  the  antecedent  obligation,  accepting  the 
nevi^  promise  as  a  substitute  therefor;  or  upon  the  considera- 
tion that  the  party  receiving  it  releases  the  property  of  an- 
other from  a  levy,  or  his  person  from  imprisonment  under 
an  execution  on  a  judgment  obtained  upon  the  antecedent 
obligation;  or  upon  a  consideration  beneficial  to  the  prom- 
isor, w^hether  moving  from  either  party  to  the  antecedent 
obligation,   or  from  another  person; 

4.  Where  a  factor  undertakes,  for  a  commission,  to  sell 
merchandise  and  guaranty   the   sale; 

5.  Where  the  holder  of  an  instrument  for  the  payment  of 
money,  upon  which  a  third  person  is  or  may  become  liable 
to  him,  transfers  it  in  payment  of  a  precedent  debt  of  his 
own,  or  for  a  new-  consideration,  and  in  connection  with  such 
transfer   enters    into   a   promise   respecting  such    instrument. 

History:     Enacted  March  21,  1872. 

§2795.  ACCEPTANCE  OF  GUARANTY.  A  mere  offer 
to  guaranty  is  not  binding,  until  notice  of  its  acceptance  is 
communicated  by  the  guarantee  to  the  guarantor;  but  an  ab- 
solute guaranly  is  binding  upon  the  guarantor  without  notice 
of  acceptance. 

History:     Enacted  Marcli  21,  1872. 


891 


§§2799-2801  CIVIL  code  [Div.III,Pt.IV. 


ARTICLE  III. 

INTERPRETATION  OF  GUARANTY. 

§  2799.  Guaranty   of  incomplete  contract. 

§  2800.  Guaranty  that  an  obligation  is  good  or  collectable. 

§  2801.  Recovery  upon   such   guaranty. 

§  2802.  Guarantor's   liability   upon   such  guaranty. 

§2799.  GUARANTY  OF  INCOMPLETE  CONTRACT. 

In  a  guaranty  of  a  contract,  the  terms  of  which  are  not  then 
settled,  it  is  implied  that  its  terms  shall  be  such  as  will  not 
expose  the  guarantor  to  greater  risks  than  he  would  incur 
under  those  terms  which  are  most  common  in  similar  con- 
tracts at  the  place  where  the  principal  contract  is  to  be  per- 
formed. 

History:     Enacted  March  21,  1872. 

§2800.  GUARANTY  THAT  AN  OBLIGATION  IS 
GOOD  OR  COLLECTABLE.  A  guaranty  to  the  effect  that 
an  obligation  is  good,  or  is  collectable,  imports  that  the 
debtor  is  solvent,  and  that  the  demand  is  collectable  by  the 
usual  legal  proceedings,   if  taken  with   reasonable   diligence. 

History:     Enacted  March  21,  1872. 


§2801.  RECOVERY  UPON  SUCH  GUARANTY.   A 

guaranty,  such  as  is  mentioned  in  the  last  section,  is  not 
discharged  by  an  ou'iission  to  take  proceedings  tipon  the 
principal  debt,  or  upon  any  collateral  security  for  its  pay- 
ment, if  no  part  of  the  debt  could  have  been  collected 
thereby. 

History:     Enacted  March  21,  1872. 
892 


Tit.XIII.ch.I.art.III.]        LIABILITY.  §2802 

§2802.  GUARANTOR'S  LIABILITY  UPON  SUCH 
GUARANTY.  In  the  cases  mentioned  in  section  two  thou- 
sand eight  hundred,  the  removal  of  the  principal  from  the 
state,  leaving  no  property  therein  from  which  the  obligation 
might  be  satisfied,  is  equivalent  to  the  insolvency  of  the 
principal  in  its  effect  'ipon  the  rights  and  obligations  of  the 
guarantor. 

History:     Enacted  March  21,  1872. 


893 


§§2806-2809  civil  coi^jo  [Div.IIl.l't.l V. 


ARTICLE  IV. 

LIABILITY  OF   GUARANTORS. 

§  2S0().      (juaranty,  how  construed. 

§  2807.     Liability  upon  guaranty  of  payment  or  performance. 
§  2808.     Liability    upon    guaranty   of   a   conditional    obligation. 
§  2809.     Obligation     of     guarantor    cannot    exceed     that    of     the 

principal. 
§  2S10.      Guarantor  not   liable  on  an   illegal  contract. 

§2806.  GUARANTY,  HOW  CONSTRUED.  A  guaranty 
is  to  be  dcettied  unconditional  unless  its  terms  import  some 
condition  precedent:   to   the  liability  of  the  guarantor. 

Historj-:     Enacted  March  21,  1872. 

§2807.  LIABILITY  UPON  GUARANTY  OF  PAY- 
MENT OR  PERFORMANCE.  A  guarantor  of  payment  or 
performance  is  liable  to  the  guarantee  immediately  upon 
the   default   of  the   principal,   and  without   demand   or  notice. 

History:     Enacted  March  21,  1872. 

§  2808.  LIABILITY  UPON  GUARANTY  OF  A  CONDI- 
TIONAL OBLIGATION.  Where  one  guarantees  a  condi- 
tional obligation,  his  liability  is  commensurate  with  that  of 
the  principal,  and  he  is  not  entitled  to  notice  of  the  default 
of  the  principal,  unless  he  is  unable,  bj-  the  exercise  of  rea- 
sonable diligence,  to  acqtxire  information  of  such  defatilt, 
and  the  creditor  has  actual  notice  thereof. 

History:     Enacted  March  21,  1872. 

§2809.  OBLIGATION  OF  GUARANTOR  CANNOT 
EXCEED  THAT  OF  THE  PRINCIPAL.  The  obligation 
of  a  guarantor  must  be  neither  larger  in  amount  nor  in  other 

894 


Tjt.Xin,cli.I,arl.IV.]    J^A.KCAJ.  contract.  §2810 

respects  more  burdensome  than  that  of  the  principal,  and  if 
in  its  terms  it  exceeds  it,  it  is  reducible  in  proportion  to  the 
principal   obligation. 

History:  Enacted  March  21,  1872,  founded  upon  Code  Na- 
poleon, art.  2013. 

§2810.  GUARANTOR  NOT  LIABLE  ON  AN  IL- 
LEGAL CONTRACT.  A  guarantor  is  not  liable  if  the  con- 
tract of  the  principal  is  unlawful;  but  he  is  liable  notwith- 
standing any  mere  personal  disability  of  the  principal,  though 
the  disability  be  such  as  to  make  the  contract  void  against 
the   principal. 

History:     Enacted  March  21,  1872. 


895 


§§2814,2815  CIVIL   CODE  [Div.III.Pt.IV. 


ARTICLE  V. 

CONTINUING  GUARANTY. 

§  2814.     Continuing  guaranty,  what. 
§  2815.     Revocation. 

§2814.  CONTINUING  GUARANTY,  WHAT.  A  guar- 
anty relating  to  a  future  liability  of  the  principal,  under  suc- 
cessive transactions,  which  either  continue  his  liability  or 
from  time  to  time  renew  it  after  it  has  been  satisfied,  is  called 
a  continuing  guaranty. 

History:     Enacted  March  21,  1872. 

§  2815.  REVOCATION.  A  continuing  guaranty  may  be 
revoked  at  any  lime  by  the  guarantor,  in  respect  to  future 
transactions,  unless  there  is  a  continuing  consideration  as  to 
such  transactions  which  he  does  not  renounce. 

History:     Enacted  March  21,  1872. 


896 


Tit.XIII,ch.I,art.VI.]     exoneration.  §§2819-2821 


ARTICLE  VI. 

EXONERATION  OF  GUARANTORS. 

§  2S19.  Wiiat  dealings  with  debtor  exonerate  guarantor. 

§  2820.  Void  promises. 

§  2821.  Rescission  of  alteration. 

§  2S22.  Part  performance. 

§  2823.  Delay   of  creditor  does   not  discliarge   guarantor. 

§  2824.  Guarantor  indemnified   by  the  debtor,   not   exonerated. 

§  2825.  Discliarge  of  principal  by  act  of  law  does  not  discharge 
guarantor. 

§2819.  WHAT  DEALINGS  WITH  DEBTOR  EXON- 
ERATE GUARANTOR.  A  guarantor  is  exonerated,  except 
so  far  a.;  he  may  be  indemnified  by  the  principal,  if  by  any 
act  of  the  creditor,  withotit  the  consent  of  the  guarantor, 
the  original  obligation  of  the  principal  is  altered  in  any  re- 
spect, or  the  remedies  or  rights  of  the  creditor  against  the 
principal,  in  respect  tliereto,  in.  any  way  impaired  or  sus- 
pended. 

History:     Enacted  March  21,  1S72. 


§2820.  VOID  PROMISES.  A  promise  by  a  creditor, 
which  for  any  cause  is  void,  or  voidable  by  him  at  his  op- 
lion,  does  not  alter  the  obligation  or  suspend  or  impair  the 
remedy,  within  the  meaning  of  the  last  section. 

History:     Enacted  March   21.  1ST2. 

§2821.  RESCISSION  OF  ALTERATION.  The  rescis- 
sion of  an  agreement  altering  the  original  obligation  of  a 
debtor,  or  inipairing  the  remedy  of  a  creditor,  does  not  re- 
-■^tore   the  liability  of  a  guarantor  who   has  been   exonerated 

by   such   agreement. 

Hi.story:     Enacted  March  21,  1872. 
29  897 


§ij  2822-2825  civil   codk  f  Div.ITI.Pt.IV. 

§2822.  PART  PERFORMANCE.  The  acceptance,  by  a 
creditor,  of  anything  in  partial  satisfaction  of  an  obligation, 
reduces  the  obligation  of  a  guarantor  thereof,  is  [in]  the 
same  measure  as  that  of  the  principal,  but  does  not  other- 
wise  affect  it. 

History:     Enacted  March  21,  1S72. 

§2823.  DELAY  OF  CREDITOR  DOES  NOT  DIS- 
CHARGE GUARANTOR.  Mere  delay  on-  the  part  of  a  cred- 
itor to  proceed  against  the  principal,  or  to  enforce  any  other 
remedy,   does   not   exonerate   a   guarantor. 

History:     Enacted  March  21,  1S72. 

§2824.  GUARANTOR  INDEMNIFIED  BY  THE 
DEBTOR,  NOT  EXONERATED.  A  guarantor,  who  has 
been  indemnified  by  the  principal,  is  liable  to  the  creditor  to 
the  extent  of  the  indemnity,  notwithstanding  that  the  cred- 
itor, without  the  assent  of  the  guarantor,  may  have  modified 
the  contract  or  released   the  principal. 

History:     Enacted  March  21,  1872. 

§2825.  DISCHARGE  OF  PRINCIPAL  BY  ACT  OF 
LAW  DOES  NOT  DISCHARGE  GUARANTOR.  A  guar- 
antor is  not  exonerated  by  the  discharge  of  his  principal  by 
operation  of  law,  without  the  intervention  or  omission  of  the 
creditor. 

History:     Enacted  March  21,,  1S72. 


898 


Tit.XllI.ch.II.art.I.J        SURETYSHIP.  §§2831,2832 


CHAPTER  II. 

SURETYSHIP. 

Article  I.  Who  Are  Sureties.  §§2831,2832. 

II.  Liability  of  Sureties,  §§2836-2840. 

III.  Rights  of  Sureties,  §§2844-2850. 

I\'.  Rights  of  Creditors,  §2854. 

\".  Letter  of  Credit,  §§2858-2866. 


ARTICLE   I. 

WHO    .ARE    SURETIES. 

§  2S31.      Surety,  what. 

§  2832.      Apparent  principal   may  slunv   that   he  i.s  surety. 

§2831.  SURETY,  WHAT.  A  .surety  is  one  who  at  the 
request  of  arother,  and  for  the  purpose  of  securing  to  him 
a  benefit,  becomes  responsible  for  the  performance  by  the 
latter  of  some  act  in  favor  of  a  third  person,  or  hypothecates 
property  as  security  therefor. 

History:     Enacted  March  21,  1872. 

§2832.  APPARENT  PRINCIPAL  MAY  SHOW  THAT 
HE  IS  SURETY.  One  who  appears  to  be  a  principal. 
Vv'hether  by  ihe  terms  of  a  written  instrument  or  otherwise, 
may  show  that  he  is  in  fact  a  surety,  except  as  against  per- 
sons who  have  acted  on  the  Taitb  of  his  apparent  character  of 
principal. 

lii.stor.v:      Enacted  March  21.  1S72. 


899 


§§2836-2839  civil  code  [Div.III,Pt.lV. 


ARTICLE   II. 

LIABILITY   OF   SURETIES. 

§  2836.      Limit   of  surety's   obligation.     . 
§  2837.     Rules   of   interpretation. 

§  2838.     Judgment  against  surety  does  not  alter  the  relation. 
§  2839.     Surety  exonerated  by  performance  or  offer  of  perform- 
ance. 
I  2840.      Surety  discharged  by  certain  acts  of  tlie  creditor. 

§  2836.  LIMIT  OF  SURETY'S  OBLIGATION.  A  sure- 
ty cannot  be  held  beyond  the  express  terms  of  his  contract, 
and  if  such  contract  prescribes  a  penalty  for  its  breach,  he 
cannot  in  any  case  be  liable   for  more  than  the  penalty. 

HLstory:     Enacted  March  21.  1S72. 

§2837.  RULES  OF  INTERPRETATION.  In  interpret- 
ing the  terms  of  a  contract  of  suretyship,  the  same  rules  are 
to  be  observed  as  in  the  case  of  other  contracts. 

History:     Enacted  March  21,  1872. 

§2838.  JUDGMENT  AGAINST  SURETY  DOES  NOT 
ALTER  THE  RELATION.  Notwithstanding  the  recovery 
of  judgment  by  a  creditor  against  a  surety,  the  latter  still 
occupies    the   relation   of   surety. 

History:     Enacted  March  21.  1872. 

§2839.  SURETY  EXONERATED  BY  PERFORM- 
ANCE OR  OFFER  OF  PERFORMANCE.  Performance 
of  the  prmcipal  obligation,  or  an  ofifer  of  such  performance, 
duly  made  as  provided  in  this  code,  exonerates  a  surety. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.,  1873-4,  p.   260. 

900 


Tit.XIII.ch.II.art.lI.]       DISCHARGE.  §2840 

§2840.  SURETY  DISCHARGED  BY  CERTAIN  ACTS 
OF  THE  CREDITOR.     A  surety  is  exonerated: 

1.  In  like  manner  with  a  guarantor; 

2.  To  the  extent  to  which  he  is  prejudiced  by  any  act  of 
the  creditor  which  would  naturally  prove  injurious  to  the 
remedies  of  the  surety  or  mconsistent  with  his  rights,  or 
which   lessens   his   security;   or, 

3.  To  the  extent  to  which  he  is  prejudiced  by  an  omission 
of  the  creditor  to  do  anything,  when  required  by  the  surety, 
which  it  is   his  duty   to  do. 

Hi.<storj-:     Enacted  March  21,  1872. 


901 


§§2844-2847  CIVIL  code  [Div.lll.rt.lV. 


ARTICLE  III. 

RIGHTS  OF  SURETIES. 

§  2844.      Surety   has   rights   of   guarantor. 

§  2845.      Surety   may   require  tlie  creditor   to  proceed  against    the 

principal. 
§  2846.     Surety    may    compel    principal    to    perform    obligations, 

when  due. 
§  2847.     A  principal  bound  to  reimburse  his  surety. 
§  2848.     The  surety  acquires  the  right  of  the  creditor. 
§  2849.     Surety  entitled  to  benefit  of  securities  held  by  creditor. 
§  2850.     The  property  of  principal   to  be  taken  first. 

§2844.     SURETY  HAS  RIGHTS  OF  GUARANTOR.    A 

surety  has  all  the  rights  of  a  guarantor,  whether  he  become 
personally  responsible  or  not. 

HLstory:     Enacted  March  21,  1872.. 

§2845.  SURETY  MAY  REQUIRE  THE  CREDITOR 
TO  PROCEED  AGAINST  THE  PRINCIPAL.  A  surely 
may  retjuirc  his  creditor  to  proceed  against  the  principal,  or 
to  pursue  any  other  remedy  in  his  power  which  the  surety 
cannot  himself  pursue,  and  which  would  lighten  his  burden; 
and  if  in  such  case  the  creditor  neglects  to  do  so,  the  surety 
is  exonerated  to  the  extent  to  which  he  is  therel^y  preju- 
diced. 

History:     Enacted  March  21.  1872. 

§2846.  SURETY  MAY  COMPEL  PRINCIPAL  TO 
PERFORM  OBLIGATIONS,  WHEN  DUE.  A  surety  may 
compel  his  princijial  to  perform  the  obligation  when  due. 

Hl.story:     Enacted  March   21,  1872. 

§2847.  A  PRINCIPAL  BOUND  TO  REIMBURSE  HIS 
SURETY.      If  a   surety   satisfies   the   principal   obligation,   or 

902 


Tit.il  I. ch.II.art. III. 1     RIGHT   OF   SURETY.  §§2848-2850 

any  part  thereof,  whether  with  or  witliout  legal  proceeding.s. 
the  principal  is  bound  to  reimburse  what  he  has  disbursed, 
including  necessary  costs  and  expenses;  but  the  surety  has  no 
claim  for  reimbursement  against  other  persons,  though  they 
may  have  been  benefited  by  his  act,  except  as  prescribed  by 
the  next  section. 

History;     Enacted  Marcli  21.  1S72. 

§2848.     THE    SURETY    ACQUIRES    THE    RIGHT    OF 

THE  CREDITOR.  A  surety,  upon  satisfying  the  obligation 
of  the  principal,  is  entitled  to  enforce  every  remedy  which 
the  creditor  then  has  against  the  principal  to  the  extent  of 
reimbursing  what  he  has  expended,  and  also  to  require  all 
his  cosureties  to  contribute  thereto,  without  regard  to  the 
order  of  time  in  which  they  became  such. 

Hi.«itory:     Enacted  Murcli   21.  1X72, 

S2849.  SURETY  ENTITLED  TO  BENEFIT  OF  SE- 
CURITIES HELD  BY  CREDITOR.  .\  surety  is  entitled 
to  the  lienefit  of  every  security  for  the  performance  of  the 
principal  obligation  held  by  the  creditor,  or  by  a  cosurety  at 
the  time  of  entering  into  the  contract  of  suretyship,  or  ac- 
quired by  him  afterwards,  whether  the  surety  was  aware  of 
the   security   or   not. 

History:     Enacted  March  21,  1872. 

§2850.  THE  PROPERTY  OF  PRINCIPAL  TO  BE 
TAKEN  FIRST.  Whenever  property  of  a  surety  is  hypoth- 
ecated with  property  of  the  principal,  the  surety  is  en- 
titled to  have  the  property  of  the  principal  llrst  applied  to 
the  discharge  of  the  obligation. 

History:     Enacted  March  21,  1872. 


903 


§§2854.2858  CIVIL   CODE  [Div.III.Pt.IV. 


ARTICLE  IV. 

RIGHTS  OF  CREDITORS. 

§  2S54.      Creditor  entitled  to  benefit  of  securities  held  by  surety. 

§2854.  CREDITOR  ENTITLED  TO  BENEFIT  OF 
SECURITIES  HELD  BY  SURETY.  A  creditor  is  entitled 
to  the  benefit  of  everything  which  a  surety  has  received 
from  the  debtor  by  way  of  security  for  the  performance  of 
the  obligation,  and  may,  upon  the  maturity  of  the  obligation, 
compel  the  application  of  such  security  to  its  satisfaction. 

History:     Enacted  March  21,  1S72. 


ARTICLE  V. 

LETTER   OF   CREDIT. 

§  2858.  Letter   of   credit,   what. 

§  2859.  How   addressed. 

§  2860.  Liability  of  the  writer. 

§  2861.  Letters  of  credit  either  general  or  special. 

§  2862.  Nature  of  general  letter  of  credit. 

§  2S6.S.  Extent   of   general  letter   of   credit. 

§  2S64.  A   letter   of  credit  maj^   be   a  continuing  guaranty. 

§  2865.  Wlien  notice  to  the  writer  necessary. 

§  2866.  The    credit    given    must    agree    w^ith    the    terms    of    the 
letter. 


§2858.  LETTER  OF  CREDIT,  WHAT.  A  letter  of 
credit  is  a  written  instrument,  addressed  by  one  person  to 
another,  requesting  the  latter  to  give  credit  to  the  person  in 
whose   favor   it   is   drawn. 

Hi.story:     Enacted  March  21,  1872. 

904 


Tit.III.ch.II.art.V.]     LIABILITY  OF  WRITER.         §§2859-2864 

§2859.     HOW  ADDRESSED.     A  letter  of  credit  may   he 
addressed  to  several  persons  in  succession. 

History:     Enacted  March  21,  1872. 


§2860.  LIABILITY  OF  THE  WRITER.  The  writer  of 
a  letter  of  credit  is,  upon  the  default  of  the  debtor,  liable 
lo   those   who   gave   credit   in   compliance  with   its   terms. 

History:     Enacted  March  21,  1872. 

§286L  LETTERS  OF  CREDIT  EITHER  GENERAL 
OR  SPECIAL.  A  letter  of  credit  is  either  general  or  special. 
When  the  request  for  credit  in  a  letter  is  addressed  to  speci- 
fied persons  by  name  or  description,  the  letter  is  special. 
All  other  letters  of  credit  are  general. 

History:     Enacted  March  21,  1872. 

§2862.  NATURE  OF  GENERAL  LETTER  OF 
CREDIT.  A  general  letter  of  credit  gives  any  person  to 
whom  it  may  be  shown  authority  to  comply  with  its  request, 
and  by  his  so  doing  it  becomes,  as  to  him,  of  the  same  ef- 
fect as  if  addressed  to  him  bj-   name. 

History:     Enacted  March  21,  1872. 

§2863.     EXTENT       OF       GENERAL       LETTER       OF 

CREDIT.      Several    persons    may    successively    give    credit 
upon  a  general  letter. 

History:     Enacted  March  21,  1872. 

§2864..  A  LETTER  OF  CREDIT  MAY  BE  A  CONTIN- 
UING GUARANTY.  If  the  parties  to  a  letter  of  credit 
appear,  by  its  terms,  to  contemplate  a  course  of  future  deal- 
ing between  the  parties,  it  is  not  exhausted  by  giving  a  credit, 
even    to   the   amount    limited    by   the   letter,   which    is    subse- 

905 


§5;  2865,2866  civil  code  |  Div.IIIJ't.J  V. 

((Uently  reduced  or  satisfied  by  payments  made  by  the  debtor, 
i)Ut  is  to  be  deemed  a  continuing  guaranty. 

History:     Enacted  March  21,  1872. 

§2865.  WHEN  NOTICE  TO  THE  WRITER  NECES- 
SARY. The  writer  of  a  letter  of  credit  is  liable  for  credit 
given  upon  it  without  notice  to  him,  unless  its  terms  ex- 
press or  imply  the  necessity  of  giving  notice. 

History:     Enacted  March  21,  1872. 

§2866.  THE  CREDIT  GIVEN  MUST  AGREE  WITH 
THE  TERMS  OF  THE  LETTER.  If  a  letter  of  credit 
prescril)es  the  persons  by  whom,  or  the  mode  in  which,  the 
credit  is  to  be  given,  or  the  term  of  credit,  or  limits  the 
amount  thereof,  the  writer  is  not  bound  except  for  trans- 
actions which,  in  these  respects,  conform  strictly  to  the 
terms  of  the   letter. 

History:     Enacted  March  21,  1S72. 


906 


Tit.XTV.ch.T.art.T.l  LTEXR.  §2872 


TITLE  XIV. 
LIEN 

[Coiiiinissioners*  ut>te.  "Although  the  arrangement  of  this 
subject  is  novel,  its  propriety  and  advantages  will  be  perceived 
at  a  glance.  Mortgages  are  liens,  and,  under  the  provisions  of 
this  code,  nothing  more.  They  are  subject,  therefore,  to  all  the 
general   rules   of  liens."] 

Chapter  I.  Liens  in  General,  §§2872-2913. 

II.  Mortgage,    §§2920-2973. 

III.  Pledge.    §§2986-3011. 

IV.  Bottomry,   §§3017-3029. 

V.  Respondentia,  §§3036-3040. 

VI.  Other   Liens,   §§3046-3065. 

VII.  Stoppage  in  Transit,  §§3076-3080. 


CHAPTER   I. 

LIENS  IN  GENER.\L 

Article   I.  Definition   of   Liens,   §§2872-2877. 

11.  Creation  of  Liens,  §§2881-2884. 

III.  Effect  of  Liens,  §§  2888-2892. 

IV.  Priority  of  Liens,  §§2897-2899. 

V.     Redemption  from  Liens,  §§  2903-2905. 
VI.     Extinction  of  Liens,  §§2909-2913. 


907 


§§2872-2875  civil  code  [Div.III.Pt.IV. 


ARTICLE  I. 

DEFINITION   OF   LIEN. 

§  2S72.  Lien,   what. 

§  2873.  Liens,  general  or  special. 

§  2874.  General  lien,  what. 

§  2875.  Special  lien,  what. 

§  2876.  Prior  liens. 

§  2877.  Contracts  subject  to  provisions  of  this  chapter. 

§2872.  LIEN,  WHAT.  A  Hen  is  a  charge  imposed  in 
some  mode  other  than  by  a  transfer  in  trust  upon  specilic 
property  by  which  it  is  made  security  for  the  performance 
of  an  act. 

History:  Enacted  March  21,  1872;  amended  February  15, 
1878,  Code  Amdts.   1877-8,  p.  88. 

§2873.  LIENS,  GENERAL  OR  SPECIAL.  Liens  are 
either  general  or  special. 

HLstory:     Enacted  March  21,  1872. 

§  2874.  GENERAL  LIEN,  WHAT.  A  general  lien  is  one 
which  the  holder  thereof  is  entitled  to  enforce  as  a  secur- 
ity for  the  performance  of  all  the  obligations,  or  all  of  a  par- 
ticular class  of  obligations,  which  exist  in  his  favor  against 
the  owner  of  the  property. 

History:     Enacted  March  21,  1872. 

§2875.  SPECIAL  LIEN,  WHAT.  A  special  lien  is  one 
which  the  holder  thereof  can  enforce  only  as  security  for  the 
performance  of  a  particular  act  or  obligation,  and  of  such 
oblitions    [obligations]    as   may   be   incidental   thereto. 

History:     Enacted  March  21,  1872. 
908 


Tit.XIV.ch.I.art.I.]  PRIOR  LIENS.  §§2876,2877 

§2876.  PRIOR  LIENS.  Where  the  holder  of  a  special 
lien  is  compelled  to  satisfj'  a  prior  lien  for  his  own  protec- 
tion, he  may  enforce  payment  of  the  amount  so  paid  by  him, 
as  a  part  of  the   claim  for  which   his  own   lien   exists. 

History:     Enacted  March  21,  1872. 

§2877.  CONTRACTS  SUBJECT  TO  PROVISIONS  OF 
THIS  CHAPTER.  Contracts  of  mortgage,  pledge,  bot- 
tomrj',  or  respondentia,  are  subject  to  all  the  provisions  of 
this  chapter. 

History:     Enacted  March  21,  1872. 


909 


§§2881-2884  otvtt.   codk  f Div.TTT.Pt.TV. 


ARTICLE   II. 

CREATION   OF  LIENS. 

§  28S1.  Lien,  how  created. 

§  2882.  No  lien  for  claim  not  clue. 

§  2883.  Lien  on  future  interest. 

§  2884.  Lien  may  be  created  by  contract. 

§2881.     LIEN,   HOW   CREATED.     A   lien   is  created: 

1.  By  contract  of  the  parties;  or, 

2.  By  operation  of  law. 

History:     Enacted  March  21,  1872. 

§2882.  NO  LIEN  FOR  CLAIM  NOT  DUE.  Xo  lien 
arises  by  mere  operation  of  law  until  the  time  at  whicli  the 
act  to  be  secured   thereby   ought  to  be  performed. 

History:     Enacted  March  21,  1872. 

§2883.  LIEN  ON  FUTURE  INTEREST.  An  agree- 
ment may  be  made  to  create  a  lien  upon  propert}'  not  j'et 
acquired  by  the  party  agreeing  to  give  the  lien,  or  not  j'et 
in  existence.  In  such  case  the  lien  agreed  for  attaches  from 
the  time  when  the  party  agreeing  to  give  it  acquires  an  in- 
T^erest  in  the  thing,  to  the  extent  of  such  interest. 

History:     Enacted  Marcli  21,  1872. 

§2884.     LIEN    MAY    BE    CREATED    BY    CONTRACT. 

A  lien  may  be  created  by  contract,  to  take  immediate  effect, 
as  security  for  the  performance  of  obligations  not  then  in 
existence. 

History:     Enacted  March  21,  1872. 


910 


Tit.XIV.ch.l.art.llI.l     KFFECT— VOID  WHEN.        §§2888-2891 


ARTICLE  III. 

EFFECT  OF  LIENS. 

§  :iS8S.  Lien,  or  c'ontract  for  lien,  tran.sfer.s  no  title-. 

§  2889.  Certain  contracts  void. 

§  2890.  Creation  of  lien  does  not  imply  personal  obligation. 

§  2891.  Extent  of  lien. 

§  2892.  Holder  of  lien   not  entitled  to  compensation. 

§2888.  LIEN,  OR  CONTRACT  FOR  LIEN,  TRANS- 
FERS NO  TITLE.  Notwithstanding  an  agreement  to  the 
contrary,  a  lien,  or  a  contract  for  a  lien,  transfers  no  title  to 
the  property  subject  to  the  lien. 

HLstory:     Enacted  March  21,  1872. 

§2889.  CERTAIN  CONTRACTS  VOID.  All  contracts 
for  the  forfeiture  of  property  subject  to  a  lien,  in  satisfaction 
of  tlie  obligation  secured  thereby,  and  all  contracts  in  re- 
straint of  the  right  of  redemption  from  a  lien,  are  void. 

Hiistor.v:     Enacted  March  21,  1X72. 

§2890.  CREATION  OF  LIEN  DOES  NOT  IMPLY 
PERSONAL  OBLIGATION.  The  creation  of  a  lien  does 
not  of  itself  imply  that  any  person  is  bound  to  perform  llie 
act  for  which  the  lien  is  a  security. 

History:     Enacted  March  21,  1872. 

§289L  EXTENT  OF  LIEN.  The  existence  of  a  lien 
upon  property  does  not  of  itself  entitle  the  person  in  whose 
favor  it  exists  to  a  lien  ui)()n  tlic  same  property  for  the  per- 
formance of  any  other  (ibbi;alii>ii  tlian  tliat  wliich  the  hen 
originally  secured. 

Histury:     Enacted  March  21,  1872. 

911 


§2892  CIVIL  CODE  [Div.III,Pt.IV. 

§2892.  HOLDER  OF  LIEN  NOT  ENTITLED  TO 
COMPENSATION.  One  who  holds  property  by  virtue  of 
a  lien  thereon,  is  not  entitled  to  coinpensation  from  the  own- 
er thereof  for  any  trouble  or  expense  which  he  incurs  re- 
specting it,  except  to  the  same  extent  as  a  borrower,  under 
sections  eighteen  hundred  and  ninety-two  and  eighteen  hun- 
dred and  ninety-three. 

History:     Enacted  March  21,  1872. 


912 


Tit.XIV,ch.I,art.IV.l  PRIORITY.  §§2897-2899 


ARTICLE  IV. 

PRIORITY   OF   LIENS. 

§  2897.      Priority  of  liens. 

§  289^8.      Priority  of  mortgage  for  price. 

§  2899.     Order  of  resort  to  different  funds. 

§2897.  PRIORITY  OF  LIENS.  Other  things  being 
equal,  different  liens  upon  the  same  property  have  priority 
according  to  the  time  of  their  creation,  except  in  cases  of 
bottomry  and  respondentia. 

History:     Enacted  Marcii  21,  1872. 

§2898.     PRIORITY   OF   MORTGAGE  FOR  PRICE.     A 

mortgage  given  for  the  price  of  real  property,  at  the  time  of 
its  conveyance,  has  priority  over  all  other  liens  created 
against  the  purchaser,  subject  to  the  operation  of  the  re- 
cording laws. 

History:     Enacted  March  21,  1872. 

§2899.  ORDER  OF  RESORT  TO  DIFFERENT 
FUNDS.  Where  one  has  a  lien  upon  several  things,  and 
other  persons  have  subordinate  liens  upon,  or  interests  in, 
some  but  not  all  of  the  same  things,  the  person  having  the 
prior  lien,  if  he  can  do  so  without  risk  of  loss  to  himself,  or 
of  injustice  to  other  persons,  must  resort  to  the  propertj^ 
in  the  following  order,  on  tlie  demand  of  any  party  inter- 
ested: 

1.  To  tlie  tilings  upon  whicli  he  has  an  exclusive  lien; 

2.  To  the  things  which  are  subject  to  the  fewest  subor- 
dinate liens; 

3.  -In  like  manner  inversely  to  the  numl^er  of  subordinate 
liens  upon  the  same   thing;   and, 

913 


§2899  CIVIL    CODK  [Div.lII,Pt.IV. 

4.  When  several  things  are  within  one  of  the  foregoing 
classes,  and  sul)ject  to  the  same  number  of  liens,  resort  must 
be   had — 

(1.)  To  the  things  whicli  have  not  been  transferred  since 
the  prior  lien  was  created; 

(2.)  To  the  things  which  have  been  so  transferred  without 
a  valuable  consideration;  and, 

(3.)  To  the  things  which  have  been  so  transferred  for  a 
valuable  consideration  in  the  inverse  order  of  the  transfer. 

History:     Enacted  March  21,  1872. 


914 


Tit.XTV.ch.T.art.V.l        UEDEMPTIOX.  §§2903-2905 


ARTICLE  \'. 

REDEMPTION  P'ROM  LIEN. 

§  2903.      Riglit   to  redeem.     Subrogation. 

§  2904.      Rights  of  inferior  lienor. 

§  2905.      Redemption    from    Hen.    how    made. 

§2903.  RIGHT  TO  REDEEM.  SUBROGATION.  Ev- 
ery person,  liaving  an  interest  in  propertj-  subject  to  a  lien, 
has  a  right  to  redeem  it  from  the  lien,  at  any  time  after  the 
claim  is  due,  and  before  his  right  of  redemption  is  fore- 
closed, and,  by  such  redemption,  becomes  subrogated  to  all 
the  benefits  of  the  lien,  as  against  all  owners  of  other  in- 
terests in  the  property,  except  in  so  far  as  he  was  bound  to 
make  such  redemption  for  their  benefit. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.   1905,  p.  617. 

§2904.     RIGHTS    OF    INFERIOR    LIENOR.     One  who 

has  a  lien  inferior  to  another,  upon  the  same  property,  has 
a  right: 

L  To  redeem  the  property  in  the  same  manner  as  its  owner 
might,  from  the  superior  lien;  and, 

2.  To  be  subrogated  to  all  the  benefits  of  the  superior 
lien,  when  necessary  for  the  projection  of  his  interests,  upon 
satisfying  the  claim  secured  thereby. 

HLstory:     Enacted  March  21,  1S72. 

§2905.     REDEMPTION    FROM    LIEN,    HOW    MADE. 

Redemption  from  a  lien  is  made  by  performing,  or  offering 
to  perform,  the  act  for  the  performance  of  which  it  is  a 
security,  and  paying,  or  offering  to  pay,  the  damages,  if  any, 
to  which   the   holder  of  the  lien   is  entitled  for  delay. 

History:     Enacted  March  21,  1872. 

915 


§3  2909-2911  CIVIL   CODE  [Div.III.Pt.l  V. 


ARTICLE  VI. 

EXTINCTION  OF  LIENS. 

§  2909.      Lien    deemed    accessory    to    the    act    whose    performance 

it  secures. 
§  2910.      Extinction  by  sale  or  conversion. 
§  2911.     Lien    extinguished    by    lapse    of    time    under    statute    of 

limitations. 
§  2912.      Apportionment  of  lien. 
§  2913.     When   restoration  extinguishes  lien. 


§2909.  LIEN  DEEMED  ACCESSORY  TO  THE  ACT 
WHOSE  PERFORMANCE  IT  SECURES.  A  lien  is  to 
be  deemed  accessory  to  the  act  for  the  performance  of 
which  it  is  a  security,  whether  any  person  is  bound  for  such 
performance  or  not,  and  is  extinguishable  in  like  manner 
with   any   other  accessory  obligation. 

History:     Enacted  March  21,  1S72. 

§2910.     EXTINCTION    BY    SALE    OR   CONVERSION. 

The  sale  of  any  property  on  which  there  is  a  lien,  in  satis- 
faction of  the  claim  secured  thereby,  or  in  case  of  personal 
property,  its  wrongful  conversion  by  the  person  holding  the 
lien,  extinguishes  the   lien   thereon. 

History:     Enacted  March  21,  1872. 

§2911.  LIEN  EXTINGUISHED  BY  LAPSE  OF  TIME 
UNDER  STATUTE  OF  LIMITATIONS.  A  lien  is  ex- 
tingtiished  by  the  lapse  of  the  time  within  which,  under  the 
provisions  of  the  Code  of  Civil  Procedure,  an  action  can  be 
brought  upon   the  principal  obligation. 

History:     Enacted  March  21,  1872. 

916 


Tit.XIV.cb.I.arl.Vl.]  APPORTIONMENT.  §§2912.2913 

§2912.  APPORTIONMENT  OF  LIEN.  The  partial  per- 
formance of  an  act  secured  by  a  lien  does  not  extinguish 
the  lien  upon  any  part  of  the  property  subject  thereto,  even 

if  it   is   divisible. 

History:     Enacted  March  21,  1872. 

§2913.  WHEN  RESTORATION  EXTINGUISHES 
LIEN.  The  voluntary  restoration  of  property  to  its  owner 
by  the  holder  of  a  lien  thereon  dependent  upon  possession 
extinguishes  the  lien  as  to  such  property,  unless  otherwise 
agreed  by  the  parties,  and  extinguishes  it,  notwithstanding 
any  such  agreement,  as  to  creditors  of  the  owner  and  per- 
sons, subsequently  acquiring  a  title  to  the  property,  or  a 
lien  thereon,  in  good  faith,  and  for  value. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  187.3-4,  p.  260;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417,  held  unconstitu- 
tional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,   Stats,   and  Amdts.   1905,   p.    617. 


917 


§2920  OTVTi.   CODF,  IDiv.ni.Pt.IV. 

CHAPTER  II. 
MORTGAGE. 

Article   I.     Mortgages   in   General.   §§2920-2942. 

II.     Mortgages  of   Real   Property,  §§2947-2952. 
III.     Mortgages  of   Personal  Property,  §§2955-2973. 


ARTICLE  I. 
MORTGAGES  IN  GENERAL. 

§  2920.  Mortgage,   what. 

§  2921.  Property   adversely   held    may   be   mortgaged. 

§  2922.  To  be  in  writing. 

§  2923.  Li'en  of  a   mortgage,   wlien   special. 

?  2924.  Transfer,  when  mortgage,  when  pledge. 

§  2925.  Transfer  made  subject  to  defeasance  may  be  proved. 

§  2926.  Mortgage,  on  what  a  lien. 

§  2927.  Mortgage  does  not  entitle  mortgagee  to  possession. 

§  292S.  Mortgage   not   a  personal   obligation. 

§  2929.  Waste. 

§  2930.  Subsequently    acquired    title    inures    to    mortgagee. 

§  2931.  Foreclosure. 

§  29.'?2.  Power  of  sale. 

§  2933.  Power  of  attorney  to   execute. 

§  2934.  Recording  assignment  of  mortgage. 

§  2935.  Not  notice  to  mortgager. 

§  2936.  Mortgage  passes  by   assignment  of  debt. 

§  2937.  Time  allowed  for  filing  mortgage  for  record   [repealed]. 

§  293S.  Mortgage,  how  discharged. 

§  2939.  Same.      [On   certificate]. 

§2939%. Same.      How   foreign   executors   and   administrators   may 

satisfy  mortgages. 

§  2940.  Same.     [Record  and  reference.] 

§  2941.  Duty  of  mortgagee  on  satisfaction  of  mortgage. 

§  2942.  Provisions    of    this    chapter    do    not    affect    bottomry    or 

respondentia. 

918 


Tit.XIV.ch.lI.art.I.]         MORTGAGES.  §§2920-2925 

§2920.  MORTGAGE,  WHAT.  Mortgage  is  a  contract 
l)y  which  specific  property  is  hypothecated  for  the  perform- 
ance of  an  act,  without  the  necessity  of  a  change  of  pos- 
session. 

Histor.v:     Enacted  March  21,  1S72. 

§2921.  PROPERTY  ADVERSELY  HELD  MAY  BE 
MORTGAGED.  A  mortgage  may  be  created  upon  property 
licld   adversely   to   the   mortgager. 

Hi.storj-:     Enacted  March  21,  1872. 

§2922.  TO  BE  IN  WRITING.  A  mortgage  can  be  cre- 
ated, renewed,  or  extended,  only  by  writing,  executed  with 
the  formalities  required  in  the  case  of  a  grant  of  real  prop- 
erty. 

History:     Enacted  March  21,  1872. 

§2923.     LIEN    OF   A   MORTGAGE,   WHEN    SPECIAL. 

The  lien  of  a  mortgage  is  special,  unless  otherwise  expressly 
agreed,  and  is  independent  of  possession. 

History:     Enacted  March  21,  1872. 

§2924.     TRANSFER,     WHEN      MORTGAGE,     WHEN 

PLEDGE.  Every  transfer  of  an  interest  in  property,  other 
than  in  trust,  made  only  as  a  security  for  the  performance  of 
another  act,  is  to  be  deemed  a  mortgage,  except  when  in  the 
case  of  personal  property  it  is  accompanied  by  actual  change 
of  possession,  in  which  case  it  is  to  be  deemed  a  pledge. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  260. 

§2925.  TRANSFER  MADE  SUBJECT  TO  DEFEAS- 
ANCE MAY  BE  PROVED.  The  fact  that  a  transfer  was 
made  subject  to  defeasance  on  a  condition,  may,  for  the 
purpose  of  showing  such  transfer  to  he  a  mortgage.  l)e  proved 

919 


§§2926-2930  civil  code  [Div.III.Pt.IV. 

^^excepl  as  against  a  subsequent  purchaser  or  encumbrancfr 
for  value  and  without  notice),  though  the  fact  does  not  ap- 
pear by  the  terms  of  the  instrument. 

History:     Enacted  March  21,  1872. 


§  2926.  MORTGAGE,  ON  WHAT  A  LIEN.  A  mortgage 
is  a  lien  upon  everything  that  would  pass  bj'  a  grant  of  the 
property. 

History:     Enacted  March  21,  1872. 


§2927.  MORTGAGE  DOES  NOT  ENTITLE  MORT- 
GAGEE TO  POSSESSION.  A  mortgage  does  not  entitle 
the  mortgagee  to  the  possession  of  the  property,  unless  au- 
thorized by  the  express  terms  of  the  mortgage;  but  after  the 
execution  of  the  mortgage  the  mortgager  may  agree  to  such 
change  of  possession  without  a  new  consideration. 

History:     Enacted  March  21,  1872. 


§2928.  MORTGAGE  NOT  A  PERSONAL  OBLIGA- 
TION. A  mortgage  does  not  bind  the  mortgager  personally 
to  perform  the  act  for  the  performance  of  which  it  is  a  se- 
curity, unless  there  is  an  express  covenant  therein  to  that 
effect. 

History:     Enacted  March  21,  1872. 

§  2929.  WASTE.  No  person  whose  interest  is  subject  to 
the  lien  of  a  mortgage  may  do  any  act  which  will  substan- 
tially impair  the  mortgagee's  security. 

History:     Enacted  March  21,  1872. 

§2930.  SUBSEQUENTLY  ACQUIRED  TITLE 
•INURES  TO  MORTGAGEE.  Title  acquired  by  the  mort- 
gager  subsequent   to   the   execution  of  the   mortgage,  inures 

920 


Tit.XIV.ch.II.art.L]       FORECLOSURE.  §§2931-2935 

to  the  mortgagee  as  security  for  the  debt,  in  like  manner  as 
if    acquired    before    the    execution. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  260. 

§2931.  FORECLOSURE.  A  mortgagee  may  foreclose 
the  right  of  redemption  of  the  mortgager  in  the  manner  pre- 
scribed by  tlie   Code  of  Civil   Procedure. 

History:     Enacted  March  21,  1872. 

§2932.  POWER  OF  SALE.  A  power  of  sale  may  be 
conferred  by  a  mortgage  upon  the  mortgagee  or  any  other 
person,  to  be  exercised  after  a  breach  of  the  obligation  foi 
which    the   mortgage   is   a   security. 

History:     Enacted  March  21,  1872. 

§2933.     POWER    OF   ATTORNEY    TO    EXECUTE.     A 

power  of  attorney  to  execute  a  mortgage  must  be  in  writing, 
subscribed,  acknowledged,  or  proved,  certified,  and  recorded 
in  like  manner  as  powers  of  attorney  for  grants  of  real  prop- 
erty. 

History:     Enacted  March  21,  1872. 

§2934.     RECORDING  ASSIGNMENT  OF  MORTGAGE. 

An  assignment  of  a  mortgage  may  be  recorded  in  like  man- 
ner as  a  mortgage,  and  such  record  operates  as  notice  to  all 
persons  subsequently  deriving  title  to  the  mortgage  from 
the  assignor. 

History:  Enacted  March  21,  1S72;  amended  March  30,  187  1, 
Code  Amdts.   1873-4,  p.   261. 

§2935.  NOT  NOTICE  TO  MORTGAGER.  When  the 
mortgage  is  executed  as  security  for  money  due,  or  to  be- 
come due,  on  a  promissory  note,  bond,  or  other  instrument, 

921 


§§2936-2939  oiviL  CODE  |  Div.II  I.Pt.IV. 

designated  in  tlie  mortgage,  the  record  of  the  assignment  of 
the  mortgage  is  not,  of  itself,  notice  to  a  mortgager,  his 
heirs,  or  personal  representatives,  so  as  to  invalidate  any  pay- 
ment made  by  them,  or  either  of  them,  to  the  person  holding 
such  note,  bond,  or  other  instrument. 

History:  Enacted  March  21,  1ST2;  amended  March  30,  1S74, 
Code  Amdts.   1873-4.  p.   261. 

§2936.  MORTGAGE  PASSES  BY  ASSIGNMENT  OF 
DEBT.  Tlie  assignment  of  a  del)t  secured  by  mortgage  car- 
ries with  it  the  security. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
.sion,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  417,  held 
unconstitutional,  see  liistory,   §  4  ante. 

§2937.  TIME  ALLOWED  FOR  FILING  MORTGAGE 
FOR  RECORD    [repealed]. 

History:  Enacted  March  21,  1872;  repealed  Marcli  30,  1874, 
Code  Amdts.   1873-4,  p.   261. 

§2938.  MORTGAGE,  HOW  DISCHARGED.  A  record- 
ed mortgage  may  be  discharged  by  an  entry  in  the  margin 
of  the  record  thereof,  signed  by  the  mortgagee,  or  his  per- 
sonal representative  or  assignee,  acknowledging  the  satisfac- 
tion of  the  mortgage  in  the  presence  of  the  recorder,  who 
must   certify    the    acknowledgment    in    form    substantially    as 

follows:     "Signed  and   acknowledged  before   me,   this    

day  of   in  the  year   A  B,  Recorder." 

History:     Enacted  March  21,  1872. 

§2939.  SAME.  [ON  CERTIFICATE.]  A  recorded 
mortgage,  if  not  discharged  as  provided  in  the  preceding 
section,  must  be  discharged  upon  the  record  by  the  ofificer 
having  custody  thereof,  on -the  presentation  to  him  of  a  cer- 
tificate signed  by  the  mortgagee,  his  personal  representatives 

922 


Tit.XlV,ch.II,art.I.]  DISCHARGE.  §§  2939J/-2941 

or  assigns,  acknowledged  or  proved  and  certified  as  pre- 
scribed by  the  chapter  on  "recording  transfers,"  stating  that 
the  mortgage  has  been  paid,  satisfied,  or  discharged. 

History:     Enacted  Marcli  21,  1S72. 

§29391/2-  SAME.  HOW  FOREIGN  EXECUTORS  AND 
ADMINISTRATORS      MAY      SATISFY      MORTGAGES. 

Foreign  executors,  administrators  and  guardians  may  satis- 
fy mortgages  upon  the  records  of  any  county  in  this  state, 
upon  producing  and  recording  in  the  ofhce  of  the  county  re- 
corder of  the  county  in  which  such  mortgage  is  recorded,  a 
duly  certified  and  authenticated  copy  of  their  letters  testa- 
mentary, or  of  administration  or  of  guardianship,  and  which 
certificate  or  authentication  shall  also  recite  that  said  let- 
ters have  not  been  revoked. 

HUtory:  Enacted  March  S,  1905,  Stats,  and  Amdts.  1905,  p. 
28;  amended  May  19,  1913,  Stats,  an.l  Amdts.  1913,  p.  216.  lu 
elf«'ot  April   10.  1913. 

§2940.     SAME.     [RECORD     AND     REFERENCE.]      A 

certificate  of  the  discharge  of  a  mortgage,  and  the  proof  or 
acknowledgment  thereof,  must  be  recorded  at  length,  and  a 
reference  made  in  the  record  to  the  book  and  page  where 
the  mortgage  is  recorded,  and  in  the  minute  of  the  discharge 
made  upon  the  record  of  the  mortgage  to  the  book  and 
page  where  the  discharge  is  recorded. 

History:     Enacted  March  21,  1872. 

§2941.  DUTY  OF  MORTGAGEE  ON  SATISFACTION 
OF  MORTGAGE.  When  any  mortgage  has  been  satisfied, 
the  nidrtgageo  or  his  assignee  must  immediately,  on  the  de- 
mand of  the  mortgager,  execute,  acknowledge,  and  deliver  to 
him  a  certificate  of  the  discharge  thereof,  so  as  to  entitle  it 
t(i  lie  recorded,  or  he  must  enter  satisfaction,  or  cause  satis- 
faction  of  such   mortgage   to  be   entered  of  record:   and  anj- 

923 


§2942  CIVIL    CODK  [Div.III,Pt.lV. 

mortgagee,  or  assignee  of  such  mortgagee,  who  refuses  to 
execute,  acknowledge,  and  deliver  to  the  mortgager  the  cer- 
tificate of  discharge,  or  to  enter  satisfaction,  or  cause  satis- 
faction of  the  mortgage  to  be  entered,  as  provided  in  this 
chapter,  is  liable  to  the  mortgager,  or  his  grantee  or  heirs, 
for  all  damages  which  he  or  they  may  sustain  by  reason  of 
such  refusal,  and  shall  also  forfeit  to  him  or  them  the  sum  of 
one  hundred  dollars. 

History:  Enacted  March  21,  1S7::;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  261;  April  15,  1880,  Code  Amdts.  1880 
(C.    C.   pt.),   p.    11. 

§2942.  PROVISIONS  OF  THIS  CHAPTER  DO  NOT 
AFFECT  BOTTOMRY  OR  RESPONDENTIA.  Contracts 
of  bottomry  or  respondentia,  although  in  the  nature  of  mort- 
gages, are  not  affected  by  any  of  the  provisions  of  this 
chapter. 

History:     Enacted  March  21,  1872. 


924 


Tit.XIV.ch.n.art.lI.]     FORM  OF  MORTGAGE.         §§2947-2949 


ARTICLE  II. 

MORTGAGES  OF  REAL  PROPERTY. 

§  2947.      What  real  property  may   be   mortgaged. 

§  294S.      Form  of  mortgage. 

§  2949.      What  must  be  recorded  as  a  mortgage   [repealed]. 

§  2950.      Defeasance,    to   affect   grant   absolute    on    Its    face,    must 

be   recorded. 
§  2951.     By   whom   paid    after   property   passes   by    succession    or 

will    [repealed]. 
§  2952.     May   be   recorded. 


§2947.  WHAT  REAL  PROPERTY  MAY  BE  MORT- 
GAGED. Any  interest  in  real  property  which  is  capable  of 
being  transferred   may  be   mortgaged. 

HLstory:     Enacted  March  21,  1S72. 

§2948.  FORM  OF  MORTGAGE.  A  mortgage  of  real 
property  may  be  made  in  substantially  the  following  form: 

This  mortgage,  made  the   day  of  in  the  year 

by    A    B,    of    mortgager,    to    C    D,    of    

mortgagee,  witnesseth: 

That  the  mortgager  mortgages  to  the  mortgagee  [here  de- 
scribe   the    property],    as    security    for    the    payment    to    him 

of dollars,  on   [or  before]  the   day  of   in 

the  year ,  with  interest  thereon   [or  as  security  for  the 

payment  of  an  obligation,  describing  it,  etc.].  A.  B. 

HLstory:     Enacted  March  21,  187  2. 


§2949.     WHAT   MUST   BE   RECORDED   AS   A   MORT- 
GAGE  [repealed]. 

History:      Enacted    March    21,    1S72;    repealed    March    30.    1874, 
Code  Amdts.,  1873-4,  p.  262. 

925 


§§2950-2952  civil   code  [Div.III.Pt.I V. 

§2950.  DEFEASANCE,  TO  AFFECT  GRANT  ABSO- 
LUTE ON  ITS  FACE,  MUST  BE  RECORDED.  When  a 
grant  of  real  property  purports  to  be  an  absolute  convey- 
ance, but  is  intended  to  be  defeasable  on  the  performance  of 
certain  conditions,  such  grant  is  not  defeated  or  affected  as 
against  any  person  other  than  the  grantee  or  his  heirs  or  de- 
visees, or  persons  having  actual  notice,  unless  an  instrument 
of  defeasance,  duly  executed  and  acknowledged,  shall  have 
be^n  recorded  in  the  office  of  the  county  recorder  of  the 
county  vi^here  the  property  is  situated. 

HLstory:     Enacted  March  21,  1872. 

§2951.  BY  WHOM  PAID  AFTER  PROPERTY  PASS- 
ES BY  SUCCESSION  OR  WILL   [repealed]. 

History:  Enacted  March  21,  1S72;  repealed  March  30,  1874, 
Code  Amdts.   1873-4.  p.   262. 

§  2952.  MAY  BE  RECORDED.  Mortgages  of  real  prop- 
erty may  be  acknowledged  or  proved,  certified  and  recorded, 
in  like   manner  and  with  like  effect,  as  grants  thereof. 

History:  Enacted  March  21,  1872;  amended  March  30,  187  i. 
Code  Amdts.   1873-4,  p.  262. 


926 


Tit.XTV.ch.TI.art.III.l    PERSONAl>TV.  §2953 


ARTICLE  HI. 

MORTGAGE  OF  PERSONAL  PROPERTY. 

§  2955.  What  personal  property   may   be  mortgaged. 

§  2956.  Form  of  personal  mortgage. 

§  2957.  When  void  as  to  third  persons. 

§  2958.  Mortgage  of  ships,  when   void   as  to   third  persons. 

§  2959.  Wliere  recorded. 

§  2960.  Property   in   transit,   where   to  be  recorded. 

§  2961.  Property  of  a  common  carrier^  where  to  l>e  recoi-ded. 

§  2962.  Recorded    in    different    places. 

§  2963.  Personal   mortgage  may   be   recorded. 

§  2964.  Certified  copies   may    be   recorded,   when. 

§  2965.  Property    exempt    from    effect   of   mortgage,    when. 

§  2966.  May  be  taken  by  mortgagee  as  a  pledge,  when. 

§  2967.  How   foreclosed. 

§  2968.  Mortgaged  property  may  be  levied  upon. 

§  2969.  Limitations  on  right  of  levy. 

§  2970.  Distribution   of  proceeds  of  sale  under  process. 

§  2971.  Certain   sections   not   applicable   to   mortgage   of   certain 

ships. 

§  2972.  Continuance   of   lien    of   mortgage   on    crops? 

§  2973.  Mortgages  on  personal  property,  validity  of  certain. 

S2955.  WHAT  PERSONAL  PROPERTY  MAY  BE 
MORTGAGED.  Mortgages  may  l)e  made  upon  all  growing 
crops,  including  grapes  and  fruit,  and  upon  any  and  all  kinds 
of  personal  property,  exc6pt  the  following: 

L   Personal  property  not  capable  of  manual  delivery; 

2.  Articles  of  wearing  apparel  and  personal  adornment; 

3.  The  stock  in  trade  of  a  merchant. 

History;  Enacted  March  21,  1872;  amended  April  3,  1876,  Code 
Amdts.  1875-6,  p.  79;  April  1,  1878.  Code  Amdts.  1877-8,  p.  88; 
February  28,  1887,  Stats,  and  Amdts.  1887,  p.  5;  March  7,  1893, 
Stats,  and  Amdts.  1893,  p.  84;  March  16,  1895,  Stats,  and  Amdts. 
1S95,  p.  57;  March  9,   1897,  Stats,  and  Amdts.  1897,  p.  95;  March   3, 

927 


§§2956-2958  civil  code  [Div.III.Pt.IV. 

1903,  Stats,  and  Amdts.  1903,  p.  IH;  March  3.  1905,  Stats,  and 
Amdts.  1905,  p.  36;  March  22,  1907,  Stats,  and  Amdts.  1907,  p. 
886,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  427;  February  20,  1909, 
Stats,  and  Amdts.  1909,  p.  34. 


§  2956.  FORM  OF  PERSONAL  MORTGAGE.  A  mort- 
gage of  personal  property  may  be  made  in  substantially  the 
following-   form; 

This  mortgage,  made  the    day  of ,  in  the  year 

,  by  A  B,  of ,  by  occupation  a   ,  mortgager, 

to   C   D,  of    ,   by  occupation  a    mortgagee,   wit- 

nesseth : 

That  the  mortgager  mortgages  to  the  mortgagee  [here  de- 
scribe the  property],  as   security  for  the  payment  to  him  of 

dollars,   on    [or   before]    the    day   of    ,   in 

the    year    with   interest    thereon    [or,   as   security   for 

the  payment  of  a  note  or  obligation,  describing  it,  etc.]. 

A.    B. 
HLstory:     Enacted  March  21,  1872. 

§2957.     WHEN    VOID    AS    TO   THIRD    PERSONS.     A 

mortgage  of  personal  property  is  void  as  against  creditors  of 
the  mortgager  and  subsequent  ptirchasers  and  encumbrancers 
of  the  property  in  good  faith  and  foT:  value,  unless: 

1.  It  is  accompanied  by  the  af^davit  of  all  the  parties  there- 
to that  it  is  made  in  good  faith  and  without  any  design  to 
hinder,  delay,  or  defraud  creditors; 

2.  It  is  acknowledged  or  proved,  certified,  and  recorded  in 
like   manner  as  grants  of  real  property. 

History:     Enacted  March  21,  1872. 

§2958.  MORTGAGE  OF  SHIPS,  WHEN  VOID  AS  TO 
THIRD  PERSONS.  A  mortgage  of  any  vessel  or  part  of 
any  vessel  under  the  flag  of  the  United  States  is  void  as 
against  any  person  (other  than  the  mortgager,  his  heirs,  and 

928 


Tit.XIV,ch.II,art.ni.l     RECORDED   whkn.  §§2959-2962 

devisee,  and  persons  having  actual  notice  thereof  j,  unless  the 
mortgage  is  recorded  in  the  otifice  of  the  collector  of  customs 
where  such  vessel  is  registered  or  enrolled. 

History:     Enacted  March  2\,  ISTl!. 

§  2959.  WHERE  RECORDED.  A  mortgage  of  personal 
property  must  be  recorded  in  the  office  of  the  county  re- 
corder of  the  county  in  which  the  mortgager  resides,  if  the 
mortgager  be  a  resident  of  this  state,  and  it  shall  also  be  re- 
corded in  the  county  in  which  the  property  mortgaged  is  sit- 
uated, or  to  which  it  may  be  removed. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417,  held 
unconstitutional,  see  history,  §  593  afite;  amended  March  22,  1907, 
Stats,  and  Amdts.  1907,  p.  853,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.   428.      In  eflEeet  immediately. 

§2960.     PROPERTY    IN    TRANSIT,    WHERE    TO    BE 

RECORDED.  For  the  purposes  of  this  article,  property  in 
transit  from  the  possession  of  the  mortgagee  to  the  county 
of  the  residence  of  the  mortgager,  or  to  a  location  for  use, 
is,  during  a  reasonable  time  for  such  transportation,  to  be 
taken  as  situated  in  the  county  in  which  the  mortgager  re- 
sides, or  where  it  is  intended  to  be  used. 

History:     Enacted  March  21,  1S7  2. 

§2961.  PROPERTY  OF  A  COMMON  CARRIER, 
WHERE  TO  BE  RECORDED.  For  a  like  purpose,  per- 
sonal property  used  in  conducting  the  business  of  a  common 
carrier  is  to  be  taken  as  situated  in  the  county  in  which  the 
principal  office  or  place  of  business  of  the  carrier  is  located. 

History:     Enacted  March  21,  187  2. 

§2962.     RECORDED     IN     DIFFERENT     PLACES.     A 

single    mortgageof    personal     property,     embracing    several 

30  929 


§§2963-2965  civil  code  [Div.III.Pt.IV. 

things  of  such  character  or  so  situated  that  by  the  provisions 
of  this  article  separate  mortgages  upon  them  would  be  re- 
quired to  be  recorded  in  different  places,  is  only  valid  in 
respect  to  the  things  as  to  which  it  is  duly  recorded. 

History:     Enacted  March  21,  1872. 

§2963.  PERSONAL  MORTGAGE  MAY  BE  RECORD- 
ED. Except  as  it  is  otherwise  in  this  article  provided, 
mortgages  of  personal  property  may  be  acknowledged,  or 
proved  and  certified,  recorded  in  like  manner  and  with  like 
effect  as  grants  of  real  property;  but  they  must  be  recorded 
in  books  kept  for  personal  mortgages  exclusively. 

History:     Enacted  March  21,  1872. 

§2964.  CERTIFIED  COPIES  MAY  BE  RECORDED, 
WHEN.  A  certified  copy  of  a  mortgage  of  personal  prop- 
ehty  once  recorded  may  be  recorded  in  any  other  county, 
and  when  so  recorded  the  record  thereof  has  the  same  force 
and  effect  as  though  it  was  of  the  original  mortgage. 

Hi.story:     Enacted  March  21,  1872. 

§2955.  PROPERTY  EXEMPT  FROM  EFFECT  OF 
MORTGAGE,  WHEN.  When  personal  property  mortgaged 
is  thereafter  removed  from  the  county  in  which  it  is  situ- 
ated, the  lien  of  the  mortgage  shall  not  be  affected  thereby 
for  thirty  days  after  such  removal;  but,  after  the  expiration 
of  such  thirty  days,  the  property  mortgaged  is  exempted 
from  the  operation  of  the  mortgage,  except  as  betv/een  the 
parties   thereto,  until  either: 

1.  The  mortgagee  causes  the  mortgage  to  be  recorded  in 
the  county  to  which  the  property  has  been  removed;  or 

2.  The  mortgagee  takes  possession  of  the  property  as  pre- 
scribed in  the  next  section. 

History:  Enacted  March  21,  1872;  amended  February  22,  1909, 
Stats,  and  Amdts.  1909.  p.  44. 

930 


Tit.XTV,ch.II,art.IlI.|    HOW  FORECLOSED.  §§2966-2970 

§2966.  MAY  BE  TAKEN  BY  MORTGAGEE  AS  A 
PLEDGE,  WHEN.  If  the  mortgager  voluntarily  removes 
or  permits  the  removal  of  the  mortgaged  property  from  the 
county  in  which  it  was  situated  at  the  time  it  was  mort- 
gaged, the  mortgagee  may  take  possession  and  dispose  of  the 
property  as  a  pledge  for  the  payment  of  the  debt,  though 
the  debt  is  not  due. 

History:     Enacted  March  21,  1872. 

§2967.  HOW  FORECLOSED.  A  mortgagee  of  personal 
property,  when  the  debt  to  secure  which  the  mortgage  was 
executed  becomes  due,  may  foreclose  the  mortgager's  right 
of  redemption  by  a  sale  of  the  property,  made  in  the  man- 
ner and  upon  the  notice  prescribed  by  the  title  en  "pledge," 
or  by  proceedings  under  the  code  of  civil  procedure. 

History:     Enacted  March  21,  1872. 

§2968.  MORTGAGE  PROPERTY  MAY  BE  LEVIED 
UPON.  Personal  property  mortgaged  may  be  taken  under 
attachment  or  execution  issued  at  the  suit  of  a  creditor  of 
the  mortgager. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417, 
)ield  unconstitutional,  see  history,  §  4  ante. 

§2969.  LIMITATIONS  ON  RIGHT  OF  LEVY.  Before 
the  property  is  so  taken,  the  officer  must  pay  or  tender  to 
the  mortgagee  the  amount  of  the  mortgage  debt  and  interest, 
or  must  deposit  the  amount  thereof  with  the  county  clerk  or 
treasurer,  payable  to  the  order  of  the  mortgagee. 

History:  Enacted  March  21,  1872;  aniended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417,  held 
unconstitutional,    see    history,    §  4    ante. 

§2970.  DISTRIBUTION  OF  PROCEEDS  OF  SALE 
UNDER  PROCESS.     When  the  property  thus  taken  is  sold 

931 


§§2971-2973  civil  code  [Div.III.Pt.IV. 

under   process,   the    officer   must   apply    tlie   proceeds    of    the 
sale   as   follows: 

1.  To  the  repayment  of  the  sum  paid  to  the  mortgagee, 
with  interest  from  the  date  of  such  payment;  and, 

2.  The  balance,  if  any,  in  like  manner  as  the  proceeds  of 
sales  under  execution  are  applied  in  other  cases. 

History:     Enacted  March  21,  1872. 

§2971.  CERTAIN  SECTIONS  NOT  APPLICABLE  TO 
MORTGAGE  OF  CERTAIN  SHIPS.  Sections  twenty-nint 
hundred  and  fifty-seven,  twenty-nine  hundred  and  fifty-nine, 
twenty-nine  hundred  and  sixty,  twenty-nine  hundred  and 
sixty-one,  twenty-nine  hundred  and  sixty-two,  twenty-nine 
hundred  and  sixty-three,  twenty-nine  hundred  and  sixty-four, 
twenty-nine  hundred  and  sixty-five,  and  twenty-nine  hundred 
and  sixty-six  do  not  apply  to  any  mortgage  of  a  ship  or  part 
of  a  ship  under  the  flag  of  the  United  States. 

HLstory:     Enacted  March  21,  1S72. 

§2972.  CONTINUANCE  OF  LIEN  OF  MORTGAGE 
ON  CROP.  The  lien  of  a  mortgage  on  a  growing  crop  con- 
tinues on  the  crop  after  severance,  whether  remaining  in  its 
original  state  or  converted  into  another  product,  so  long  as 
the  same  remains  on  the  land  of  mortgager. 

History:     Enacted  April  J,  187S,  Code  Anidts.  1S77-8,  p.  SO. 

§2973.  MORTGAGES  ON  PERSONAL  PROPERTY, 
VALIDITY  OF  CERTAIN.  Mortgages  of  personal  prop- 
erty, other  than  that  mentioned  in  section  twenty-nine  hun- 
dred and  fifty-five,  and  mortgages  not  made  in  conformity' 
with  the  provisions  of  this  article,  are  nevertheless  valid  be- 
tween the  parties,  their  heirs,  legatees,  and  personal  repre- 
sentatives, and  persons  who,  before  parting  with  value,  have 
actual  notice  thereof. 

History:  Enacted  Viy  Code  Commission,  A<'t  March  10.  19(il. 
Stats,  and  Amdts.  1900-1,  p,  418,  held  unconstitutional,  see  his- 
tory, §4  ante;  amendment  re-enacted  March  21,  1905,  Stats,  and 
Amdts.  190.5,  p.  617. 

932 


Tit.XlV,ch.IlI.]  PLEDGES.  §§2986,2987 


CHAPTER  III. 

PLEDGE. 

§  2986.  Pledge,  what. 

§  29S7.  When  contract  is  to  be  deemed  a  pledge. 

§  29S8.  Delivery  essential  to  validity  of  pledge. 

§  2989.  Increase  of  thing. 

§  2990.  Lienor  may  pledge  property  to  extent  of  his   lien. 

I  2991.  Real  owner  cannot  defeat  pledge  of  property  transferred 

to  apparent  owner  for  purpose  of  pledge. 

§  2992.  Pledge-lender,  what. 

§  2993.  Pledge-holder,  what. 

§  2994.  When  pledge-lender  may  withdraw  property  pledged. 

§  2995.  Obligations  of  pledge-holder. 

§  2996.  Pledge-holder  must  enforce  rights  of  pledgee. 

§  2997.  Obligation  of  pledgee  and  pledge-holder,  for  reward. 

§  2998.  Gratuitous  pledge-holder. 

§  2999.  Debtor's  misrepresentation  of  value  of  pledge. 

§  3000.  When  pledgee  may  sell. 

§  3001.  When  pledgee  must  demand  performance. 

§  3002.  Notice  of  sale  to  pledgeor. 

§  3003.  "^^aiver  of  notice  of  sale. 

§  3004.  Waiver   of  demand. 

§  3005.  Sale  must  be  by  auction. 

§  3006.  Pledgee's  sale  of  securities. 

§  3007.  Sale,  on  the  demand  of  the  pledgeor. 

§  3008.  Surplus  to  be  paid  to  pledgeor. 

§  3009.  Pledgee  may  retain. 

§  3010.  Pledgee's  purchase  of  property  pledged. 

§  3011.  Pledgee  may  foreclose  right  of  redemption. 


§  2986.  PLEDGE,  WHAT.  Pledge  is  a  deposit  of  person- 
al pro])crty  In-  w  a\'  of  security  for  the  ]>erformance  of  an- 
other act. 

IliNdtry:      Kliaitcd  Marcli    21,   1X72. 


S2987.     WHEN    CONTRACT    IS    TO    BE    DEEMED    A 
PLEDGE,     Every  contract  hy  which  the  possession   of  per- 

933 


§§2988-2992  civil  code  [Div.III.Pt.IV. 

sonal  property  is  transferred,  as  security  only,  is  to  be 
deemed  a  pledge. 

History:     Enacted  March  21,  1872. 

§2988.  DELIVERY  ESSENTIAL  TO  VALIDITY  OF 
PLEDGE.  The  lien  of  a  pledge  is  dependent  on  possession, 
and  no  pledge  is  valid  until  the  property  pledged  is  delivered 
to  the  pledgee,  or  to  a  pledge-holder,  as  hereafter  prescribed. 

History:     Enacted  March  21,  1872. 

§2989.  INCREASE  OF  THING.  The  increase  of  prop- 
erty pledged  is  pledged   with  the  property. 

History:     Enacted  March  21,  1872. 

§2990.  LIENOR  MAY  PLEDGE  PROPERTY  TO  EX- 
TENT OF  HIS  LIEN.  One  who  has  a  lien  upon  property 
majr  pledge  it  to  the  extent  of  his  lien. 

History:     Enacted  March  21,  1872. 

§299L  REAL  OWNER  CANNOT  DEFEAT  PLEDGE 
OF  PROPERTY  TRANSFERRED  TO  APPARENT 
OWNER  FOR  PURPOSE  OF  PLEDGE.  One  who  has 

allowed  another  to  assume  the  apparent  ownership  of  prop- 
erty for  the  purpose  of  making  any  transfer  of  it,  cannot 
set  up  his  own  title,  to  defeat  a  pledge  of  the  property,  made 
by  the  other,  to  a  pledgee  who  received  the  property  in  good 
faith,  in  the  ordinary  course  of  business,  and  for  value. 

History:     Enacted  March  21,  1S72. 

§2992.  PLEDGE-LENDER,  WHAT.  Property  may  be 
pledged  as  security  for  the  obligation  of  another  person  than 
the  owner,  and  in  so  doing  the  owner  has  all  the  rights  of  a 
pledgeor  for  himself,  except  as  hereinafter  stated. 

History:     Enacted  March  21,  1872. 

934 


Tit. XlV.ch. 111.1  PLEDGE-HOLDER.  §§2993-2997 

§2993.  PLEDGE-HOLDER,  WHAT.  A  pledgeor  and 
pledgee  may  agree  upon  a  third  person  with  whom  to  deposit 
the  property  pledged,  who,  if  he  accepts  the  deposit,  is  called 
a  pledge-holder. 

History:     Enacted  March  21,  1872. 

§2994.  WHEN  PLEDGE-LENDER  MAY  WITH- 
DRAW PROPERTY  PLEDGED.  One  who  pledges  prop- 
erty as  security  for  the  obligation  of  another,  cannot  with- 
draw the  property  pledged  otherwise  than  as  a  pledgeor 
for  himself  might,  and  if  he  receives  from  the  debtor  a  con- 
sideration for  the  pledge  he  cannot  withdraw  it  without  his 
consent. 

History:     Enacted  March  21,  1872. 

§2995.     OBLIGATIONS      OF      PLEDGE-HOLDER.     A 

pledge-holder  for  reward  cannot  exonerate  himself  from  his 
undertaking;  and  a  gratuitous  pledge-holder  can  do  so  only 
by  giving  reasonable  notice  to  the  pledgeor  and  pledgee  to 
appoint  a  new  pledge-holder,  and  in  case  of  their  failure  to 
agree,  by  depositing  the  property  pledged  with  some  impar- 
tial person,  who  will  then  be  entitled  to  a  reasonable  compen- 
sation for  his  care  of  the  same. 

History:     Enacted  March  21,  1872. 

§  2996.  PLEDGE-HOLDER  MUST  ENFORCE  RIGHTS 
OF  PLEDGEE.  A  pledge-holder  must  enforce  all  the  rights 
of  the  pledgee,  unless  authorized  by  him  to  waive  them. 

History:     Enacted  March  21,  1S72. 

§2997.  OBLIGATION  OF  PLEDGEE  AND  PLEDGE- 
HOLDER, FOR  REWARD.  A  pledgee,  or  a  pledge-hold- 
er for  reward,  assumes  the  duties  and  liabilities  of  a  deposi- 
tarj'  for   reward. 

History:     Enacted  March  21,  1872. 

935 

/ 


§§2998-3002  civil   code  [Div.III,Pt.TV. 

§2998.  GRATUITOUS  PLEDGE-HOLDER.  A  gratui- 
tous pledge-holder  assumes  the  duties  and  liabilities  of  a 
gratuitous   depositary. 

History:     EnaL-ted  Mareli  Jl,  IbTii. 


§2999.  DEBTOR'S  MISREPRESENTATION  OF  VAL- 
UE OF  PLEDGE.  Where  a  debtor  has  obtained  credit,  or 
an  extension  of  time,  by  a  fraudulent  misrepresentation  of 
the  value  of  property  pledged  by  or  for  him,  the  creditor 
may  demand  a  further  pledge  to  correspond  with  the  value 
represented;  and  in  default  thereof  may  recover  his  debt  im- 
mediately, though  it  be  not  actually  due. 

History:  Enacted  March  21,  1872,  founded  upon  Civ.  Code  La., 
art.  3141. 


§3000.  WHEN  PLEDGEE  MAY  SELL.  When  per- 
formance of  the  act  for  which  a  pledge  is  given  is  due,  in 
whole  or  in  part,  the  pledgee  may  collect  what  is  due  to  him 
by  a  sale  of  property  pledged,  subject  to  the  rules  and  ex- 
ceptions   hereinafter    prescribed. 

History:     Enacted  March  21,  1872. 


§3001.  WHEN  PLEDGEE  MUST  DEMAND  PER- 
FORMANCE. Before  property  pledged  can  be  sold,  and 
after  performance  of  the  act  for  which  it  is  security  is  due, 
the  pledgee  must  demand  performance  thereof  from  the  debt- 
or, if  the  debtor  can  be  found. 

Hist«»ry:  Enacted  Marcli  21,  lo72;  amended  March  30,  1S74, 
Code  Amdts.   1873-4,  p.   262. 


§  3002.  NOTICE  OF  SALE  TO  PLEDGEOR.  A  pledgee 
must  give  actual  notice  to  the  pledgeor  of  the  time  and  place 
at  which  the  property  pledged  will  be  sold,  at  such  a  reason- 

936 


Tit.XIV.ch.lII.l  WAIVER  OF   NOTICE.  §§  30()3-30()7 

able  time  before  the  sale  as  will  enable  the  pledgeor  to  at- 
tend. 

History:     Enacted  March  21,  1872. 

§3003.  WAIVER  OF  NOTICE  OF  SALE.  Notice  of 
sale  may  be  waived  by  a  pledgeor  at  anj'  time;  l)Ut  is  not 
waived   by  a   mere   waiver   of  demand   of   performance. 

History:     Enacted  March  21,  1ST2. 

§  3004.  WAIVER  OF  DEMAND.  A  debtor  or  pledgeor 
waives  a  demand  of  performance  as. a  condition  precedent 
to  a  sale  of  the  property  pledged,  by  a  positive  refusal  to 
perform,  after  performance  is  due;  but  cannot  waive  it  in  any 
other  manner  except  by  contract. 

History:     Enacted  March  21,  1S72. 

§3005.  SALE  MUST  BE  BY  AUCTION.  The  sale  by 
pledgee,  of  property  pledged,  must  be  made  by  public  auc- 
tion, in  the  manner  and  upon  the  notice  of  sale  of  personal 
propert}'  under   execution. 

History:  Enacted  IMarch  21,  1ST2,  amended  April  16,  1909, 
Stats,  and  Amdts.   1909,  p.   972. 

§3006.     PLEDGEE'S      SALE      OF      SECURITIES.        .\ 

pledgee  cannot  sell  any  evidence  of  debt  pledged  to  him,  ex- 
cept the  obligations  of  governments,  states,  or  corporations; 
but  he  may  collect  the  same  when  due. 

History:     Enacted  March   21.  1S72. 

§3007.  SALE  ON  THE  DEMAND  OF  THE  PLEDGE- 
OR, Whenever  property  pledged  can  be  sold  for  a  price 
sufificient  to  satisfy'  the  claim  of  the  pledgee,  the  pledgeor 
may  require  it  to  be  sold,  and  its  proceeds  to  be  applied  to 
such  satisfaction,   when  due. 

History:     Enacted  March  21,  1872. 

937 


§§3008-3011  CIVIL    CODE  [Div.III.Pt.IV. 

§  3008.  SURPLUS  TO  BE  PAID  TO  PLEDGEOR.  Aft- 
er a  pledgee  has  lawfully  sold  property  pledged,  or  otherwise 
collected  its  proceeds,  he  may  deduct  therefrom  the  amount 
due  under  the  principal  obligation,  and  the  necessary  ex- 
penses of  sale  and  collection,  and  must  pay  the  surplus  to  the 
pledgeor,  oji  demand. 

History:     Enacted  March  21,  1872. 

§3009.  PLEDGEE  MAY  RETAIN.  When  property 
pledged  is  sold  b}'  order  of  the  pledgeor  before  the  claim  of 
the  pledgee  is  due,  the  latter  may  retain  out  of  the  proceeds 
all  that  can  possibly  become  due  under  his  claim  until  it  be- 
comes due. 

History:  Enacted  March  21,  1S72;  amended  March  .OO,  1S74. 
Code  Amdt.s.  1873-4,  p.  262. 

§3010.  PLEDGEE'S  PURCHASE  OF  PROPERTY 
PLEDGED.  Whenever  property  pledged  is  sold  at  public 
auction,  in  the  manner  provided  by  section  three  thousand 
and  five  of  this  code,  the  pledgee  or  pledge-holder  may  pur- 
chase said  property  at  such  sale. 

History:  Enacted  March  21,  1S72;  amended  March  8,  1895, 
Stats,  and  Amdts.  1895,  p.   26. 

§  3011.  PLEDGEE  MAY  FORECLOSE  RIGHT  OF  RE- 
DEMPTION. Instead  of  selling  property  pledged,  as  here- 
inbefore provided,  a  pledgee  may  foreclose  the  right  of  re- 
demption by  a  judicial  sale,  under  the  direction  of  a  compe- 
tent court;  and  in  that  case  may  be  authorized  by  the  court 
to  purchase  at  the  sale. 

History:     Enacted  March  21,  1872. 


938 


Tit.XIV,ch.IV.|  BOTTOMRY.  §§3017-3019 


CHAPTER  IV. 

BOTTOMRY. 

§  3017.  Bottomry,  what. 

§  3018.  Owner  of  ship  may  hypothecate. 

§  3019.  When  master  may  hypothecate  ship. 

§  3020.  Same.      [When  owner  cannot  be  reached,  etc.] 

§  3021.  M^lien  master  may  liypotliecate   freiglit  money. 

§  3022.  Rate  of  interest. 

§  3023.  Rights   of   lender,    wlien    no   necessity    for    bottomry    ex- 
isted. 

§  3024.  Stipulation  for  personal  liability  void. 

§  3025.  When   money   loaned   is   to   be   repaid. 

§  3026.  When  bottomry  loan  becomes  due. 

§  3027.  Bottomry   lien,   how  lost. 

§  3028.  Preference  of  bottomry   lien   over  other  liens. 

§  3029.  Priority  of  bottomry  liens. 

§3017.  BOTTOMRY,  WHAT.  Bottomry  is  a  contract 
by  which  a  ship  or  its  freightage  is  hypothecated  as  secur- 
ity for  a  loan,  which  is  to  be  repaid  only  in  case  the  ship 
survives  a  particular  risk,  voyage,   or  period. 

History:     Enacted  March  21,  1872. 

§3018.     OWNER   OF    SHIP     MAY     HYPOTHECATE. 

The  owner  of  a  ship  may  hypothecate  it  or  its  freightage, 
upon  bottomry,  for  any  lawful  purpose,  and  at  any  time  and 
place. 

History:     Enacted  March  21,  1872. 

§3019.  WHEN  MASTER  MAY  HYPOTHECATE 
SHIP.  The  master  of  a  ship  may  hypothecate  it  upon  bot- 
tomry only  for  the  purpose  of  procuring  repairs  or  supplies 
which  are  necessary  for  accomplishing  the  objects  of  the 
voyage,  or  for  securing  the  safety  of  the  ship. 

History:     Enacted  March  21,  1872. 

939 


§§3020-3024  CIVTT.   rODK  [Div.TII.Pt.IV. 

§3020.  SAME.  [WHEN  OWNER  CANNOT  BE 
REACHED,  ETC.]  The  master  of  a  ship  can  hypothecate 
it  upon  bottomry  only  when  he  cannot  otherwise  relieve 
the  necessities  of  the  ship,  and  is  unable  to  reach  adequate 
funds  of  the  owner,  or  to  obtain  any  upon  the  personal  credit 
of  the  owner,  and  when  previous  communication  with  him  is 
precluded  by  the  urgent  necessity  of  the  case. 

History:     Enacted  March  21,  1872. 

§3021.  WHEN  MASTER  MAY  HYPOTHECATE 
FREIGHT  MONEY.  The  master  of  a  ship  may  hypothe- 
cate freightage  upon  bottomry,  under  the  same  circumstances 
as  those  which  authorize  an  hypothecation  of  the  ship  by 
him. 

History:     Enacted  March  21,  1ST2. 

§  3022.  RATE  OF  INTEREST.  Upon  a  contract  of  bot- 
tomry', the  parties  may  lawfully  stipulate  for  a  rate  of  interest 
higher  than  that  allowed  by  the  law  upon  other  contracts. 
But  a  competent  court  may  reduce  the  rate  stipulated  when 
it  appears  unjustifiable  and  exorbitant. 

History:     Enacted  March  21,  1872. 

§3023.  RIGHTS  OF  LENDER,  WHEN  NO  NECES- 
SITY FOR  BOTTOMRY  EXISTED.  A  lender  upon  a  con- 
tract of  bottomry,  made  by  the  master  of  a  ship,  as  such, 
may  enforce  the  contract,  though  the  circumstances  neces- 
sary to  authorize  the  master  to  hypothecate  the  ship  did  not 
in  fact  exist,  if,  after  due  diligence  and  inquiry,  the  lender  had 
reasonable  grounds  to  believe,  and  did  in  good  faith  believe, 
in  the  existence  of  such  circumstances. 

Uistorj-:     Enacted  March  21.  1S72. 

§  3024.  STIPULATION  FOR  PERSONAL  LIABILITY 
VOID.     A   stipulation   in   a   contract   of  bottomry,   imposing 

940 


Tit.XIV.ch.lV.I  MONEY  r.OANEl).  S§  3025-3029 

any  liability  for  the  loan  independent  of  the  maritime  risks, 
is  void. 

History:     Enacted  March  21,  3  872. 

§3025.  WHEN  MONEY  LOANED  IS  TO  BE  RE- 
PAID. In  case  of  a  total  loss  of  the  thing  hypothecated, 
from  a  risk  to  which  the  loan  was  subject,  the  lender  upon 
bottomry  can  recover  nothing;  in  case  of  a  partial  loss,  he 
can  recover  only  to  the  extent  of  the  net  value  to  the  owner 
of  the  part  saved. 

History:     Enacted  March  21.  1872. 

§3026.     WHEN   BOTTOMRY   LOAN   BECOMES  DUE. 

Unless    it    is    otherwise    expressly    agreed,    a    bottomry    loan 
liecomes  due  immediately  upon  the  termination  of  the  risk, 
although  a   term  of  credit  is  specified  in  the   contract. 
Hi.story:     Enacted  March  21,  1872. 

§3027.  BOTTOMRY  LIEN,  HOW  LOST.  A  bottom- 
ry lien  is  independent  of  possession,  and  is  lost  by  omission 
to   enforce   it   within   a  reasonable   time. 

History:     Enacted  March  21,  1872. 

§3028.  PREFERENCE  OF  BOTTOMRY  LIEN  OVER 
OTHER  LIENS.  A  bottomry  lien,  if  created  out  of  a  real 
or  apparent  necessity,  in  good  faith,  is  preferred  to  every  oth- 
er lien  or  claim  upon  the  same  thing,  excepting  only  a  lien 
for  seamen's  wages,  a  subsequent  lien  of  materialmen  for 
supplies  or  repairs  indispensable  to  the  safety  of  the  ship, 
and   a    subsequent   lien   for   salvage. 

History:     Enacted  March  21,  1872. 

§3029.  PRIORITY  OF  BOTTOMRY  LIEN.  Of  two 
or  more  bottomry  liens  on  the  same  subject,  the  latter  in 
date  has  preference,  if  created  out  of  necessity. 

History:     Enacted  March  21,  1872. 

^       941 


§§3036-3038  civil   codk  f Div.HI.Pt.IV. 

CHAPTER  V. 

RESPONDENTIA. 

§  3036.  Respondentia,  what. 

§  30S7.  Respondentia  by  owner. 

§  303S.  Respondentia  by  master. 

§  3039.  Rate   of  interest. 

§  3040.  Obligations   of   sliip-owner. 


§3036.  RESPONDENTIA,  WHAT.  Respondentia  is  a 
contract  by  which  a  cargo,  or  some  part  thereof,  is  hypothe- 
cated as  sectirity  for  a  loan,  the  repayment  of  which  is  de- 
pendent on  maritime  risks. 

HistKi-y:     Enacted  March  21,  1S72. 


§3037.  RESPONDENTIA  BY  OWNER.  The  owner 
of  cargo  may  hypothecate  it  upon  respondentia,  at  any  time 
and  place,  and  for  any  lawful  purpose. 

History:     Enacted  March  21,  1872. 


§3038.  RESPONDENTIA  BY  MASTER.  The  master 
of  a  ship  may  hypothecate  its  cargo  upon  respondentia  only 
in  a  case  in  which  he  would  be  authorized  to  hypothecate 
the  ship  and  freightage,  but  is  unable  to  borrow  sufificient 
money  thereon  for  repairs  or  supplies  which  are  necessary 
for  the  successful  accomplishment  of  the  voyage;  and  he 
cannot  do  so,  even  in  such  case,  if  there  is  no  reasonable 
prospect  of  benefiting  the  cargo  thereby. 

Hi-story:     Enacted  March  21,  1872. 

942 


Tit.XIV,ch.V.l  RESPONDENTIA.  §§3039,3040 

§  3039.  RATE  OF  INTEREST.  The  provisions  of  sec- 
tions three  thousand  and  twenty-two  to  three  thousand  and 
twentj'-nine  apply  equally  to  loans  on  respondentia. 

Hi.stcry:     Enacted  March  21,  1872. 

§  3040.  OBLIGATIONS  OF  SHIP-OWNER.  The  own- 
er of  a  ship  is  bound  to  repay  to  the  owner  of  its  cargo  all 
which  the  latter  is  compelled  to  pay,  under  a  contract  of 
respondentia  made  by  the  master,  in  order  to  discharge  its 
lien. 

'  Histoi-y:     Enacted  March  21,  1872. 


943 


§§3046-3047  civil  code  [Div.IIl,Pt.IV. 


CHAPTER  VI. 

OTHER  LIENS. 

§  ;;(i46.  Lien    of  seller   of  real   property. 

§  3047.  When  transfer  of  contract  Vv'aivps  lien. 

§  SO'J.S.  PJxtent  of  seller's  lien. 

§  .3049.  Lien  of  seller  of  personal  property. 

§  ."050.  Purchaser's  lien  on  real  property. 

§  3051.  Lien  upon  personal  property  for  fc-ervices  performed. 

§  3051!.  Liens  on  personal  property.     [Lien-holder  may  sell]. 

§  3053.  Lien  of  factor. 

§  3054.  Banker's   lien. 

§  3055.  Shipmaster's  lien. 

§  3056.  Seamen's  lien. 

§  3057.  OfTicer's  lien. 

§  3058.  Judgment  lien. 

§  3059.  Mechanic's  lien. 

§  3060.  Lien  on  ships. 

§  3061.  Lien   of  workmen   on   threshing-  machines,   etc. 

§  3062.  Lien  of  person  in  charge  of  stallion,  etc. 

§  3063.  Claimant  of  lien  must  file  verified  claim.     Such  claim  a 

notice  to  subsequent  purchasers. 

§  3064.  Action  to  enforce  lien. 

§  3065.  Logger's    lien.     Upon   what    lien    subsists.      Lien    ceases, 

when. 


§3046.     LIEN  OF  SELLER     OF     REAL     PROPERTY. 

One  who  sells  real  property  has  a  vendor's  lien  thereon,  in- 
dependent of  possession,  for  so  much  of  the  price  as  re- 
mains unpaid  and  unsecured  otherwise  than  by  the  personal 
obligation  of  the  buyer. 

Ilirtorj  :     Enacted  March   21.  1S72. 


§3047.  WHEN  TRANSFER  OF  CONTRACT  WAIVES 
LIEN.  Where  a  buyer  of  real  property  gives  to  the  seller 
a  written  contract  for  payment  of  all  or  part  of  the  price, 
an  absolute  transfer  of  such  contract  by    the    seller    waives 

944  . 


Tit.XIV.ch.VI.]  SELLER'S  LIEN.  §§3048-3051 

liis  lien  to  the  extent  of  the  sum  payable  under  tlie  cf)ntract, 
l)ut  a  transfer  of  such  contract  in  trust  to  pay  clel)ts,  and 
return  the  surplus,  is  not  a  waiver  of  the  lien. 

Hislorj-:     Enacted  March  21,  1S72. 

§  3048.  EXTENT  OF  SELLER'S  LIEN.  The  liens  de- 
fined in  sections  three  thousand  and  forty-six  and  three 
thousand  and  fifty  are  valid  against  every  one  claiming 
under  the  debtor,  except  a  purchaser  or  encumbrancer  in 
good   faith  and   for  value. 

Hi-story:     Enacted  March  21,  1ST2. 

§  3049.  LIEN  OF  SELLER  OF  PERSONAL  PROP- 
ERTY. One  who  sells  personal  property  has  a  special  lien 
thereon,  dependent  on  possession,  for  its  price,  if  it  is  in  his 
possession  when  the  price  becomes  payable,  and  may  enforce 
his  lien  in  like  manner  as  if  the  property  was  pledged  to  him 
for  the  price. 

Histoi-j-:     Enacted  March  21,  1872. 

§3050.     PURCHASER'S  LIEN  ON  REAL  PROPERTY. 

One  who  pays  to  the  owner  any  part  of  the  price  of  real 
property,  under  an  agreement  for  the  sale  thereof,  has  a  spe- 
cial lien  upon  the  property,  independent  of  possession,  for 
such  part  of  the  amount  paid  as  he  may  be  entitled  to  re- 
cover back,   in  case  of  a  failure  of  consideration. 

Historj-:     Enacted  March  21,  1872. 


§3051.  LIEN  UPON  PERSONAL  PROPERTY  FOR 
SERVICES  PERFORMED  THEREON.  Every  person 
who,  while  lawfully  in  possession  of  an  article  of  personal 
])roperty  renders  any  service  to  the  owner  thereof,  by  labor 
or  skill,  employed  for  the  protection,  improvement,  safe 
keeping,  or  carriage  thereof,  has  a  special  lien  thereon,  de- 

945 


§3052  CIVIL    CODE  [Div.III.Pl.IV. 

pendent  on  possession,  for  the  compensation,  if  any,  which 
is  due  to  him  from  the  owner  for  such  service;  a  person  who 
makes,  alters,  or  repairs  any  article  of  personal  property, 
at  the  request  of  the  owner,  or  legal  possessor  of  the  prop- 
erty, has  a  lien  on  the  same  for  his  reasonable  charges  for 
the  balance  due  for  such  work  done  and  materials  furnished, 
any  may  retain  possession  of  the  same  until  the  charges  are 
paid;  and  livery  or  boarding  or  feed  stable  proprietors,  and 
persons  pasturing  horses  or  stock,  have  a  lien,  dependent  on 
possession,  for  their  compensation  in  caring  for,  boarding, 
feeding,  or  pasturing  such  horses  or  stock;  and  laundry  pro- 
prietors and  persons  conducting  a  laundry  business,  have  a 
general  lien,  dependent  on  possession,  upon  all  personal  prop- 
erty in  their  hands  belonging  to  a  customer,  for  the  balance 
due  them  from  such  customer  for  laundry  work;  and  veter- 
inary proprietors  and  veterinary  surgeons  shall  have  a  lien, 
dependent  on  possession,  for  their  compensation  in  caring 
for,  boarding,  feeding,  and  medical  treatment  of  animals; 
and  keepers  of  garages  for  automobiles  shall  have  a  lien, 
dependent  on  possession,  for  their  compensation  in  caring  for 
and   safe  keeping    [of]    such   automobiles. 

History:  Enacted  March  21,  1872;  amended  March  29,  1878. 
Code  Amdts.  1877-8,  p.  89;  March  1,  1907,  Stats,  and  Amdts  1907, 
p.   85,   Kerr's   Stats,   and   Amdts.    1906-7,  p.   428;   April   12,   1911,  p. 

8S7. 

§3052.  LIENS  ON  PERSONAL  PROPERTY.  [LIEN- 
HOLDER  MAY  SELL.]  If  the  person  entitled  to  the  lien 
provided  for  in  section  three  throusand  and  fiftj^-one  of  this 
code  be  not  paid  the  amount  due  and  for  which  said  lien  is 
given,  within  twentj'^  days  after  the  same  shall  have  become 
due,  then  such  lien-holder  may  proceed  to  sell  said  prop- 
erty, or  so  much  thereof  as  may  be  necessary  to  satisfy  said 
lien  and  costs  of  sale,  at  public  ai:ction. 

[Notice  of  sale.]  And  by  giving,  at  least  ten  days'  previ- 
ous  notice   of  such   sale   by  advertising   in   some   newspaper 

946 


Tit.XIV.ch.VI.l         FACTOR'S,   ETC.,  LIEN.  §§3053-3056 

])ublished  in  the  county  in  which  such  property  is  situated; 
or,  if  there  be  no  newspaper  published  in  such  county,  then 
by  posting  notices  of  the  sale  in  three  of  the  most  public 
places  in  the  town  or  place  where  such  property  is  to  be 
sold,   for  ten   days  previous  to  the  date  of  sale. 

The  proceeds  of  the  sale  must  be  applied  to  the  discharge 
of  the  lien  and  the  cost  of  keeping  and  selling  the  property; 
the  remainder*,  if  any,  must  be  paid  over  to  the  owner  thereof. 

History:  Enacted  March  21,  1S72;  amended  by  Code  Commis- 
.sion.  Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  418,  held 
unconstitutional,  see  history,  §  593  ante;  amended  March  1,  1907, 
Stats,  and  Amdts.  1907,  p.  86,  Kerr's  Stats,  and  Amdts.  1906-7,  p. 
428. 

§  3053.  LIEN  OF  FACTOR.  A  factor  has  a  general  lien, 
dependent  on  possession,  for  all  that  is  due  to  him  as  such, 
upon  all  articles  of  commercial  value  that  are  intrusted  to 
him   by  the   same   principal. 

History:     Enacted  Marcli  21,  1872. 

§  3054.  BANKER'S  LIEN.  A  banker  has  a  general  lien, 
dependent  on  possession,  upon  all  property  in  his  hands  be- 
longing to  a  customer,  for  the  balance  due  to  him  from  such 
customer  in  the  course  of  the  business. 

History:     Enacted  March  21,  1872. 

§3055.  SHIPMASTER'S  LIEN.  The  master  of  a  ship 
has  a  general  lien,  independent  of  possession,  upon  the  ship 
and  freightage,  for  advances  necessarily  made  or  liabilities 
necessarily  incurred  by  him  for  the  benefit  of  the  ship,  but 
has   no  lien   for  his   wages. 

History:     Enacted  March  21,  1872. 


§3056.     SEAMEN'S    LIEN.     The   mate   and   seamen   of   a 
ship   have    a   general    lien,    independent   of   possession,    upon 

947 


§S  3057-3061  f'TViT.  code  [Div.TTT.Pt.lV. 

the   ship   and   freightage,   for   their   wages,   which   is   superior 
to   every   other   lien. 

History:     Enacted  March  21,  1872. 

§  3057.  OFFICER'S  LIEN.  An  officer  who  levies  an  at- 
tachment or  execution  upon  personal  property  acquires  a 
special  lien,  dependent  on  possession,  upon  such  property, 
which  authorizes  him  to  hold  it  until  the  process  is  dis- 
charged or  satisfied,  or  a  judicial  sale  of  the  property  is  had. 

History:     Enacted  March  21,  1S72. 

§3058.  JUDGMENT  LIEN.  The  lien  of  a  judgment  is 
regulated  by  the  code  of  civil  procedure. 

History:     Enacted  March  21,  1S72. 


§3059.  MECHANIC'S  LIEN.  The  liens  of  mechanics, 
for  materials  and  services  upon  real  property,  are  regulated 
by  the  code  of  civil  procedure. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  418.  held 
unconstitutional,  see  liistury,   §  4  ante. 

§3060.  LIEN  ON  SHIPS.  Debts  amounting  to  at  least 
fifty  dollars,  contracted  for  the  benefit  of  ships,  are  liens  in 
the   cases  provided  by  the   code   of  civil   procedure. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16.  1901,  i^tats.  and  Amdts.  1900-1,  p.  418,  held 
unconstitutional,  see  history,  §  4  ante. 

§3061.  LIEN  OF  WORKMEN  ON  THRESHING  MA- 
CHINES, ETC.  Every  person  performing  work  or  labor  in, 
with,  about,  or  upon  any  barley  crusher,  threshing  machine 
or  engine,  horsepower,  wagon,  or  other  appliance  thereof, 
while   engaged   in   crushing  or   threshing,   has   a  lien   thereon 

948 


Tii.XTV.ch.VT.j         i^TEN  ON  STALOON.  §§3062.3063 

to  the  extent  of  the  value  of  his  services.  Such  lien  extends 
for  ten  days  after  any  such  person  ceases  such  work  or  labor; 
provided,  within  that  time,  an  action  is  brought  to  recover 
the  amount  of  the  claim.  If  judgment  is  given  in  favor  of  the 
plaintiff  in  any  such  action,  and  it  is  further  found  that  he 
is  entitled  to  a  lien  under  the  provisions  of  this  section,  prop- 
erty subject  thereto,  or  so  much  thereof  as  may  be  necessary, 
may  be  sold  to  satisfy  such  judgment;  but  if  several  judg- 
ments have  been  recovered  against  the  same  property  for  the 
enforcement  of  such  liens,  the  proceeds  of  the  sale  must  be 
divided  pro  rata  among  the  judgment  creditors. 

Hisiory:  Enacted  bj'  Code  Commis.sion^  Act  March  16,  1901, 
Slats,  and  Amdts.  1900-1,  p.  418,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  190.5,  Stats,  and  vArndts.  1905, 
p.  618;  founded  upon  Act  March  12,  1885.  Stats,  and  Amdts.  1885, 
p.   109. 

§3062.  LIEN  OF  PERSON  IN  CHARGE  OF  STAL- 
LION, ETC.  Every  owner  or  person  having  in  tharge  any 
stallion,  jack,  or  bull,  used  for  propagating  purposes,  has  a 
lien  for  the  agreed  price  of  its  service  upon  any  mare  or  cow 
and  upon  the  offspring  of  such  service,  unless  some  wilfull}'^ 
false  representation  concerning  the  breeding  or  pedigree  of 
such  stallion,  jack,  or  bull  has  been  made  or  published  by  the 
owner  or  person  in  charge  thereof,  or  by  some  other  person, 
at  the  request  or  instigation  of  such  owner  or  person  in 
cJiarge. 

History:  Enacted  by  Code  Commission,  Act  Marcli  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  419;  held  unconstitutional,  see  his- 
tory, §4  ante;  re-enacted  March  21,  1905,  p.  617;  a  codification 
of  §  1,  Act  March  11,  1891,  Stats,  and  Amdts.  1891,  p.  90. 

§  3063.  CLAIMANT  OF  LIEN  MUST  FILE  VERIFIED 
CLAIM.  SUCH  CLAIM  A  NOTICE  TO  SUBSEQUENT 
PURCHASERS.  Every  claimant  of  a  lien  provided  for  in 
the  preceding  section  must,  within  ninety  days  after  the  serv- 
ice on  account  of  which  the  lien  is  claimed,  file  in  the  office 

949 


§55  3064,3065  civil  code  [Div.III,Pt.IV. 

of  the  county  recorder  of  the  county  where  the  mare  or  cow 
subject  thereto  is  kept,  a  verified  claim  containing  a  partic- 
ular description  of  the  mare  or  cow,  the  date  and  place  of 
service,  the  name  of  the  owner  or  reputed  owner  of  such 
mare  or  cow,  a  description  by  name,  or  otherwise,  of  the 
stallion,  jack,  or  bull  performing  the  service,  the  name  of  the 
owner  or  person  in  charge  thereof,  and  the  amount  of  the 
lien  claimed.  Such  claim,  so  filed,  is  notice  to  subsequent 
purchasers  and  encumbrancers  of  such  mare  or  cow  and  of 
the  offspring  of  such  service  for  one  year  after  such  filing. 

Hi.story:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  419,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.  618;  a  codification  of  §  2,  Act  March  11,  1891,  Stats,  and  Amdts. 
1891,  p.   91. 

§3064.  ACTION  TO  ENFORCE  LIEN.  An  action  to 
enforce  any  lien  created  under  section  thirty  ]iundred  and 
sixty-two  may  be  brought  in  any  county  wherein  any  of  the 
propert}'  subject  thereto  may  be  found,  and  the  plaintiff  is 
entitled  to  the  remedies  provided  in  sections  thirty  hundred 
and  forty-four  and  thirty  hundred  and  sixty-five  upon  com- 
plying with  such  sections,  both  of  which  are  hereby  made  ap- 
plicable to  the  proceedings  in  such  action. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  419,  lield  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.  619;  founded  upon  §§3,  4,  Act  March  11,  1891,  Stats,  and 
Amdts.   1891,  p.   91. 

§3065.  LOGGER'S  LIEN.  UPON  WHAT  LIEN  SUB- 
SISTS. LIEN  CEASES,  WHEN.  A  person  who  labors  at 
cutting,  hauling,  rafting,  or  drawing  logs,  bolts,  or  other  tim- 
ber, has  a  lien  thereon  for  the  amount  due  for  his  personal 
services,  which  takes  precedence  of  all  other  claims,  to  con- 
tinue for  thirty  days  after  the  logs,  bolts,  or  other  timber 
arrive  at  the   place   of  destination   for   sale   or   manufacture, 

950 


Tit  5^IV,cb.VI.l  LOGGER'S    LIEN.  §3065 

while  such  logs,  bolts,  or  other  timber  are  in  the  county  in 
which  such  labor  was  performed.  The  lien  hereby  created 
ceases  and  determines  unless  the  claimant  thereof,  within 
twenty  days  from  the  time  such  labor  is  completed,  brings 
suit  to  foreclose  the  same.  The  plaintiff  in  any  such  suit,  at 
the  time  of  issuing  the  summons  or  at  any  time  afterwards, 
may  have  the  logs,  bolts,  or  other  timber  upon  which  Such 
lien  subsists  attached,  as  provided  in  this  code,  upon  deliv- 
ering to  the  clerk  an  affidavit  by  or  on  behalf  of  the  plain- 
tiff, showing  that  defendant  is  indebted  to  the  plaintifif  upon 
a  demand  for  labor  performed,  either  in  the  cutting,  hauling, 
rafting,  or  drawing  such  logs,  bolts,  or  other  timber,  and 
that  the  sum  for  which  the  attachment  is  asked  is  an  actual 
bona  fide  existing  debt,  due  and  owing  from  the  defendant 
to  the  plaintiff,  and  that  the  attachment  is  not  sought,  and  the 
action  is  not  brought,  to  hinder,  delay,  or  defraud  any  cred- 
itor or  creditors  of   the   defendant. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901. 
Stats,  and  Amdts.  1900-1,  p.  419,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.  619;  founded  upon  Act  March  30^  1878,  Stats.  1877-8,  p.  747, 
as  amended  April  12,  1880,  Stats.  1880,  p.  38.  and  March  8,  1887, 
Stats,  and  Amdts.  1887,  p.  63. 


951 


§  3076-3078 


CIVIL    CODE 


[Div.IIT,rt.lV. 


§  3076 
§  3077 
§  3078 
§  3079 
§  3080 


CHAPTER  VII. 

STOPPAGE  IN  TRANSIT. 

Wlien  consignor  may  stop   goods. 
What  is  insolvency  of  consignee. 
Transit,  wlien   ended. 
Stoppage,   how  effected. 
Effect  of  stoppage. 


§3076.     WHEN  CONSIGNOR  MAY  STOP  GOODS.     A 

seller  or  consignor  of  property,  whose  claim  for  its  price  or 
proceeds  has  not  been  extinguished,  may,  upon  the  insolv- 
ency of  the  buyer  or  consignee  becoming  known  to  him 
after  parting  with  the  property,  stop  it  while  on  its  transit 
to  the  buyer  or  consignee,  and  resume  possession  thereof. 

Historj  :     Enacted  March  21,  1872. 


§3077.     WHAT  IS  INSOLVENCY     OF     CONSIGNEE. 

A  person  is  insolvent,  within  the  meaning  of  the  last  section, 
when  he  ceases  to  pay  his  debts  in  the  manner  usual  with 
persons  of  his  business,  or  when  he  declares  his  inability  or 
unwillingness  to  do  so. 

Hi.story:     Enacted  March  21,  1872. 


§3078.  TRANSIT,  WHEN  ENDED.  The  transit  of 
property  is  at  an  end  when  it  comes  into  the  possession  of 
the  consignee,  or  into  that  of  his  agent,  unless  such  agent  is 
employed  merely  to  forward  the  property  to  the  consignee. 

History:     Enacted  March  21,  1872. 

952 


Tit.XlV.ch.VII-l      STOPPAGE  IN  TRANSIT.  §§3079.3080 

§3079.  STOPPAGE,  HOW  EFFECTED.  Stoppage  in 
transit  can  be  effected  onlj^  by  notice  to  the  carrier  or  depos- 
itary of  the  property,  or  by  taking  actual  possession  thereof. 

History:     Enacted  Marcli  21,  1S72. 

§  3080.  EFFECT  OF  STOPPAGE.  Stoppage  in  transit 
does  not,  of  itself,  rescind  a  sale,  but  is  a  means  of  enforcing 
the  lien  of  the  seller. 

History:     Enacted  March  21,  1&T2. 


953 


§30<S6  CIVIL   CODE  [Div.III.Pt.IV. 


TITLE  XV. 

NEGOTIABLE   INSTRUMENTS. 

Chapter  I.  Negotiable  Instruments  in  General,  §§  .3086-31t)5. 

II.  Bills   of   Exchange,   §§  3171-3238. 

III.  Promissory  Notes,   §§3244-3248. 

IV.  Checks,  §§  3254,  3255. 

V.     Bank  Notes  and  Certificates  of  Deposit,  §§  3261, 
3262. 


CHAPTER  I. 

NEGOTIABLE  INSTRUMENTS  IN  GENERAL 

Article  I.  General  Definitions,   §§3086-3095. 

II.  Interpretation,   §§3099-3104. 

III.  Indorsement,  §§3108-3125. 

IV.  Presentment  for  Payment,  §§3130-3137. 
V.  Dishonor,    §§3141-3151. 

VI.     Excuse  of  Presentment  and   Notice,  §§  3155-3160. 
VII.     Extinction,   §§3164,  3165. 


954 


Tit.XV.ch.I.art.I.]  DEFINITIONS.  §§3086-3088 


ARTICLE  I. 

GENERAL,  DEFINITIONS. 

§  30S6.  To  what  instruments  this  title  is  applicable. 

§  30S7.  Negotiable  instrument,  what. 

§  308S.  Must   be   for    unconditional   payment    of   money.      Attor- 
ney's fees  and  costs. 

§  3089.  Payee. 

§  3090.  Instrument  may   be  in   alternative. 

§  3091.  Date,   etc. 

§  3092.  May  contain  a  pledge,  etc. 

§  3093.  What  it  must  not  contain. 

§  3094.  Date. 

§  3095.  Different   classes   of   negotiable   instruments. 

§  3086.  TO  WHAT  INSTRUMENTS  THIS  TITLE  IS 
APPLICABLE.  The  provisions  of  this  title  appl}'  onl}-  to 
negotiable  instruments,  as  defined  in  this  article. 

History:     Enacted  March  21,  1872. 

§3087.     NEGOTIABLE        INSTRUMENT,      WHAT.     A 

negotiable  instrument  is  a  written  promise  or  request  for 
the  payment  of  a  certain  sum  of  money  to  order  or  bearer,  in 
conformit}^  to  the  provisions  of  this  article. 

Hi.stopy:     Enacted  March  21,  1S72. 


§3088.  MUST  BE  FOR  UNCONDITIONAL  PAY- 
MENT OF  MONEY.  ATTORNEY'S  FEES  AND 
COSTS.  A  negotiable  instrument  must  be  made  payable  in 
money  onlj-  and  without  any  condition  not  certain  of  ful- 
filment, except  that  it  may  provide  for  the  payment  of  attor- 
ney's fees  and  costs  of  suit,  in  case  suit  be  brought  there- 
on to  compel  the  payment  thereof; 

[Bonds  secured  by  mortgage,  etc.]  Provided,  however,  that 
bonds  payable  to  bearer  shall  be  negotiable,  notwithstanding 

955 


§§3089-3093  civii.  code  [Div.III.Pt.IV. 

any  condition  contained  therein  or  in  the  mortgage,  deed  of 
trust  or  other  instrument  securing  the  same. 

History:  Enacted  March  21,  1872;  amended  March  10,  1905, 
by  adding  exception  to  attorney's  fees  and  costs,  Stats,  and 
Amdts.  1905,  p.  96;  amendment  became  law,  under  constitutional 
provision,  without  Governor's  approval  April  19,  1915,  Stats,  and 
Amdts.   1915.  p.  99.     In  eflfet-t  August  8,  1915. 

§  3089.  PAYEE.  The  person  to  whose  order  a  negotiable 
instrument  is  made  payable  must  be  ascertainable  at  the 
time  the  instrument  is  made. 

History:     Enacted  March  21,  1872. 


§3090.     INSTRUMENT  MAY   BE  IN   ALTERNATIVE. 

A  negotiable  instrument  may  give  to  the  payee  an  option  be- 
tween the  payment  of  the  sum  specified  therein  and  the  per- 
formance of  another  act;  but  as  to  the  latter,  the  instrument 
is   not   within   the  provisions   of  this   title. 

History:     Enacted  March  21,  1872. 

§  3091.  DATE,  ETC.  A  negotiable  instrument  may  be 
with  or  without  date,  and  with  or  without  designation  of  the 
time  or  place  of  payment. 

History:     Enacted  March  21,  1872. 

§3092.  MAY  CONTAIN  A  PLEDGE,  ETC.  A  nego- 
tiable instrument  must  not  contain  anj'-  other  contract  than 
with   authority  to  dispose  thereof. 

History:     Enacted  March  21.  1S72. 

§3093.  WHAT  IT  MUST  NOT  CONTAIN.  A  nego- 
tiable instrument  must  not  contain  any  other  contract  than 
such   as   is   specified   in   this   article. 

History:     Enacted  March  21,  1872. 

956 


Tit.XV.ch.I.art.I.l      DATE— CLASSES  OF.  §§3094,3095 

§  3094.  DATE.  Any  date  may  be  inserted  by  the  maker 
of  a  negotiable  instrument,  whether  past,  present,  or  future, 
and  the  instrument  is  not  invalidated  by  his  death  or  inca- 
pacity at  the  time  of  the  nominal  date. 

History:     Enacted  March  21,  1872. 

§3095.  DIFFERENT  CLASSES  OF  NEGOTIABLE 
INSTRUMENTS.  There  are  six  classes  of  negotiable  in- 
struments, namel}': 

1.  Bills  of  exchange; 

2.  Promissory  notes; 

3.  Bank    notes; 

4.  Checks; 

5.  Bonds; 

6.  Certificates  of  deposit. 

History:     Enacted  March  21,  1872. 


957 


§§3099-3102  CIVIL  code  [Div.III,Pt.IV. 


ARTICLE  II. 

INTERPRETATION   OF   NEGOTIABLE    INSTRUMENTS. 

§  3099.  Time  and  place  of  payment. 

§  3100.  Place  of  payment  not  specified. 

§  3101.  Instruments  payable  to  a  person  or  his  order,  how  con- 
strued. 

§  3102.  Unindorsed  note,  when  negotiable. 

§  3103.  Fictitious  payee. 

§  3104.  Presumption  of  consideration. 

§3099.  TIME  AND  PLACE  OF  PAYMENT.  A  nego- 
tiable instrument  which  does  not  specif}'  the  time  of  paj^- 
ment,  is  payable  immediately. 

History:     Enacted  March  21,  IS72. 

§  3100.     PLACE   OF  PAYMENT  NOT   SPECIFIED.     A 

negotiable  instrument  which  does  not  specify  a  place  of  pay- 
ment, is  payable  at  the  residence  or  place  of  business  of  the 
maker,   or   wherever  he   may   be   found. 

History:  Enacted  March  21,  1872;  amended  March  30,  1ST4, 
Code  Amdts.    1S73-4,  p.   262. 

§3101.  INSTRUMENTS  PAYABLE  TO  A  PERSON 
OR  HIS  ORDER,  HOW  CONSTRUED.  An  instrument, 
otherwise  negotiable  in  form,  payable  to  a  person  named,  but 
with  the  words  added,  "or  to  his  order,"  or  "to  bearer,"  or 
words  equivalent  thereto,  is  in  the  fonner  case  payable  to 
the  written  order  of  such  person,  and  in  the  latter  case  pay- 
able to  the  bearer. 

History:     Enacted  March  21,  1S72. 

§3102.  UNINDORSED  NOTE,  WHEN  NEGOTIA- 
BLE.    A  negotiable   instrument,   made  payable   to   the   order 

958 


Tit.XV,ch.I,art.II.]    FICTITIOUS  PAYEE.  §§3103,3104 

of  the  maker,  or  of  a  fictitious  person,  if  issued  by  the  maker 
for  a  valid  consideration,  without  indorsement,  has  the  same 
effect  against  him  and  all  other  persons  having  notice  of  the 
facts  as  if  payable  to  the  bearer. 

History:     Enacted  March  21,  1872.^ 

§  3103.  FICTITIOUS  PAYEE.  A  negotiable  instrument, 
made  paj'al^le  to  the  order  of  a  person  obviously  fictitious, 
is  payable  to  the  bearer. 

History:     Enacted  March  21,  1872. 

§3104.     PRESUMPTION    OF   CONSIDERATION.     The 

signature  of  every  drawer,  acceptor,  and  indorser  of  a  nego- 
tiable instrument  is  presumed  to  have  been  made  for  a  valu- 
able consideration,  before  the  maturity  of  the  instrument, 
and  in  the  -ordinary  course  of  business. 

History:     Enacted  March  21,  1S72. 


959 


§§3108-3110  nvTL  CODE  fDiv.IIl.Pt.lV. 


ARTICLE  111. 

INDORSEMENT. 

§  310S.  Indorsement,  what. 

§  3109.  Agreement  to  indorse. 

§  3110.  AVhen   may   be  made  on  separate  paper. 

§  3111.  Kinds  of  indorsement. 

§3112.  General   indorsement,   what. 

§  3113.  Special    indorsement,    what. 

§  3114.  General   indorsement,  how   made   special. 

§  3115.  Destruction   of   negotiability  by   indorser. 

§  3116.  Implied  warranty   of  indorser. 

§  3117.  Indorser,  when  liable  to  payee. 

§  3118.  Indorsement  without   recourse. 

§  3119.  Same.      [Effect  of.] 

§  3120.  Indorsee  privy   to   contract. 

§  3121.  Rights  of  accommodation   indorser    [repealed]. 

§  3122.  Effect  of  want  of  consideration. 

§  3123.  Indorsee  in  due  course,  what. 

§  3124.  Rights  of  indorsee  in  due  coufse. 

§  3125.  Instrument  left  blank. 

§3108.  INDORSEIMENT,  WHAT.  One  who  writes  his 
name  upon  a  negotiable  instrument,  otherwise  than  as  a 
maker  or  acceptor,  and  delivers  it,  with  his  name  thereon,  to 
another  person,  is  called  an  indorser,  and  his  act  is  called 
indorsement. 

History:     Enacted  March  21,  1S72. 

§3109.  AGREEMENT  TO  INDORSE.  One  who  agrees 
to  indorse  a  negotiable  instrument  is  botmd  to  write  his  sig- 
nature upon  the  back  of  the  instrument,  if  there  is  sufficient 
space  thereon  for  that  purpose. 

History:     Enacted  March  21,  1872. 

§3110.  WHEN  MAY  BE  MADE  ON  SEPARATE  PA- 
PER.    When    there    is    not   room    for   a    signature    upon    the 

960 


Tit.XV,ch.I,art.III.l       INDORSEMENT.  §§3111-3110 

back  of  a  negotiable  instrument,  a  signature  equivalent  to  an 
indorsement  thereof  may  be  made  upon  a  paper  annexed 
thereto. 

History:     Enacted  March  21,  1872. 

§3111.  KINDS  OF  INDORSEMENT.  An  indorsement 
may  be  general  or  special. 

History:     Enacted  March  21,  1872. 

§3112.  GENERAL  INDORSEMENT,  WHAT.  A  gen- 
eral indorsement  is  one  bj^  which  no  indorsee  is  named. 

History:     Enacted  March  21,  1872. 

§3113-  SPECIAL  INDORSEMENT,  WHAT.  A  spe- 
cial  indorsement  specifies   the   indorsee. 

History:     Enacted  March  21,  1872. 

§3114.     GENERAL     INDORSEMENT,     HOW     MADE 

SPECIAL.  A  negotiable  instrument  bearing  a  general  in- 
dorsement cannot  be  afterwards  specially  indorsed;  but  any 
lawful  holder  may  turn  a  general  indorsement  into  a  special 
one,  by  writing  above  it  a  direction  for  payment  to  a  partic- 
ular person. 

History:     Enacted  March  21,  1872. 

§3115.  DESTRUCTION  OF  NEGOTIABILITY  BY 
INDORSER.  A  special  indorsement  may,  by  express  words 
for  that  purpose,  but  not  otherwise,  be  so  made  as  to  ren- 
der the  instrument  not  negotiable. 

History:     Enacted  March  21,  1872. 

§3116.     IMPLIED     WARRANTIES     OF     INDORSER. 

Every    indorscr    of    a    negotiable    instrument,    unless    his    in- 

•i  961 


§§3117-3119  CIVIL  CODE.  tDiv.III.Pt.IV. 

dorsement  is  qualified,  warrants  to  every  subseqvient  holder 
thereof,  who  is  not  liable  thereon  to  him: 

1.  That  it  is  in  all  respects  what  it  purports  to  be. 

2.  That  he  has  a  good  title  to  it. 

3.  That  the  signatures  of  all  prior  parties  are  binding  upon 
them. 

4.  That  if  the  instrument  is  dishonored,  the  indorser  will, 
upon  notice  thereof  duly  given  to  him,  or  without  notice, 
where  it  is  excused  by  law,  pay  the  same  with  interest,  un- 
less exonerated  under  the  provisions  of  sections  thirty-one 
hundred  and  eighty-nine,  thirty-two  hundred  and  thirteen, 
thirty-two  hundred  and  forty-eight,  or  thirty-two  hundred 
and    fifty-five. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.   263. 

§3117.     INDORSER,     WHEN     LIABLE     TO    PAYEE. 

One  who  indorses  a  negotiable  instrument  before  it  is  deliv- 
ered to  the  paVee,  is  liable  to  the  payee  thereon,  as  an  in- 
dorser. 

History:     Enacted  March  21,  1872. 

§3118.     INDORSEMENT  WITHOUT  RECOURSE.     An 

indorser  may  qualify  his  indorsement  with  the  words,  "with- 
out recourse,"  or  equivalent  words;  and  upon  such  indorse- 
ment, he  is  responsible  only  to  the  same  extent  as  in  the 
case  of  a  transfer  without  indorsement. 

History:     Enacted  March  21,  1872. 

§3119.  SAME.  [EFFECT  OF.]  Except  as  otherwise 
prescribed  by  the  last  section,  an  indorsement,  without  re- 
course, has  the  same  effect  as  any  other  indorsement. 

History:     Enacted  March  21,  1872. 

962 


Tit.XV.ch.l.art.lll.]      CONSIDERATION.  §§3120-3124 

§3120.  INDORSEE  PRIVY  TO  CONTRACT.  An  in- 
dorsee of  a  negotiable  instrument  has  the  same  rights  against 
every  prior  party  thereto  that  he  would  have  had  if  the  con- 
tract had  been  made  directly  between  them  in  the  first  in- 
stance. 

History:     Enacted  March  21,  1872. 

§3121.  RIGHTS  OF  ACCOMMODATION  INDORS- 
ER    [repealed]. 

HUtory:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   263. 

§  3122.     EFFECT  OF  WANT     OF     CONSIDERATION. 

The  want  of  consideration  for  the  undertaking  of  a  maker, 
accepter,  or  indorser  of  a  negotiable  instrument  does  not  ex- 
onerate him  from  liability  thereon  to  an  indorsee  in  good 
faith  for  a  consideration. 

History:     Enacted  March  21,  1872. 

§3123.     INDORSEE  IN  DUE     COURSE,     WHAT.     An 

indorsee  in  due  course  is  one  who,  in  good  faith,  in  the  ordi- 
nary course  of  business,  and  for  value,  before  its  apparent 
maturity  or  presumptive  dishonor,  and  without  knowledge  of 
its  actual  dishonor,  acquires  a  negotiable  instrument  duly 
indorsed  to  him,  or  indorsed  generally,  or  payable  to  the 
bearer. 

Hi.story:     Enacted  March  21,  1872. 


§3124.     RIGHTS  OF  INDORSEE  IN     DUE     COURSE. 

An  indorsee  of  a  negotiable  instrument,  in  due  course,  ac- 
quires an  absolute  title  thereto,  so  that  it  is  valid  in  his  hands, 
notwithstanding  any  provision  of  law  making  it  generally 
void  or  voidable,  and  notwithstanding  any  defect  in  the  title 
of  the  person  from  whom  he  acquired  it. 

History:     Enacted  March  21,  1S72. 

963 


S3125  CIVIL  CODE.  [Diy.III,Pt.IV. 

§  3125.  INSTRUMENT  LEFT  BLANK.  One  who  makes 
himself  a  party  to  an  instrument  intended  to  be  negotiable, 
but  which  is  left  wholly  or  partly  in  blank,  for  the  purpose  of 
filling  afterM'ards,  is  liable  upon  the  instrument  to  an  in- 
dorsee thereof  in  due  course,  in  whatever  manner  and  at 
whatever  time  it  may  be  filled,  so  long  as  it  remains  nego- 
tiable in  form. 

History:     Enacted  March  21,  1872. 


964 


Tit.XV,ch.I,art.IV.]       PRESENTMENT.  §§3130,3131 


ARTICLE  IV. 

PRESENTMENT  FOR  PAYMENT. 

§  3130.  Effect   of  want   of  demand   on   principal    debtor. 

§  3131.  Presentment  for  payment,  how  made. 

§  3132.  Apparent  maturity,  wlien. 

§  3133.  Presumptive  dislionor  of  bill,  payable   after  sight. 

§  3134.  Apparent  maturity  of  bill,  payable  at  sight. 

§  3135.  Apparent  maturity  of  note. 

§  3136.  Same.     [After  sight  or  demand.] 

§  3137.  Surrender  of  instrument,  when  a  condition   of  payment. 

§  3130.  EFFECT  OF  WANT  OF  DEMAND  ON  PRIN- 
CIPAL DEBTOR.  It  is  not  necessary  to  make  a  demand  of 
payment  upon  the  principal  debtor  in  a  negotiable  instrument 
in  order  to  charge  him;  but  if  the  instrument  is  by  its  terms 
payable  at  a  specified  place,  and  he  is  able  and  willing  to  pay 
it  there  at  maturity,  such  abilit}'  and  willingness  are  equiva- 
lent to  an  ofifer  of  payment  upon  his  part. 

History:     Enacted  March  21,  1S72. 

§3131.     PRESENTMENT       FOR      PAYMENT,      HOW 

MADE.  Presentment  of  a  negotiable  instrument  for  pay- 
ment, when  necessarj^  mtist  be  made  as  follows,  as  nearly 
as  by  reasonable   diligence  it  is  practicable: 

1.  The  instrument  must  be  presented  by  the  holder,  or  his 
agent; 

2.  The  instrument  must  be  presented  to  the  principal 
debtor,  if  he  can  be  found  at  the  place  where  presentment 
should  be  made;  and  if  not,  then  it  must  be  presented  to 
some  other  person  having  charge  thereof,  or  employed  there- 
in, if  one  can  be  found  there; 

3.  An  instrument  which  specifies  a  place  for  its  payment 
must  be  presented  there;  and  if  the  place  specified  includes 

965 


§S  3132,3133  CIVIL  CODE.  [Div.III.Pt.lV. 

more  than  one  house,  then  at  the  place  of  residence,  or  bus- 
iness, of  the  principal  debtor,  if  it  can  be  found  therein; 

4.  An  instrument  which  does  not  specify  a  place  for  its 
payment  must  be  presented  at  the  place  of  residence,  or  busi- 
ness, of  the  principal  debtor,  or  wherever  he  may  be  found, 
at  the  option  of  the  presenter; 

5.  The  instrument  must  be  presented  upon  the  day  of  its 
maturity,  or,  if  it  is  paj'able  on  demand,  it  may  be  presented 
upon  any  day.  It  must  be  presented  within  reasonable 
hours;  and  if  it  is  payable  at  a  banking  house,  within  the 
usual  banking  hours  of  the  vicinity,  but,  by  the  consent  of 
the  person  to  whom  it  should  be  presented,  it  may  be  pre- 
sented at  any  hour  of  the  day; 

6.  If  the  principal  debtor  has  no  place  of  business,  or  if 
his  place  of  business,  or  residence,  cannot,  with  reasonable 
diligence,  be  ascertained,  presentment  for  payment  is  ex- 
cused. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  263;.  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  420,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.   620. 

§3132.  APPARENT  MATURITY,  WHEN.  The  appar- 
ent maturity  of  a  negotiable  instrument,  payable  at  a  partic- 
ular time,  is  the  day  on  which,  by  its  terms,  it  becomes  due, 
or  when  that  is  a  holiday,  the  next  business  day. 

Hi-story:     Enacted  March  21,  1872. 

§3133.  PRESUMPTIVE  DISHONOR  OF  BILL,  PAY- 
ABLE AFTER  SIGHT.  A  bill  of  exchange,  payable  at  a 
certain  time  after  sight,  which  is  not  accepted  within  ten  days 
after  its  date,  in  addition  to  the  time  which  would  suffice, 
with  ordinary  diligence,  to  forward  it  for  acceptance,  is  pre- 
sumed to  have  been  dishonored. 

History:     Enacted  March  21,  1S72. 
966 


Tit.XV.ch.T.art.TV.l  MATURITY.  §§3134-3137 

§  3134.  APPARENT  MATURITY  OF  BILL,  PAYABLE 
AT  SIGHT.  The  apparent  maturity  of  a  bill  of  exchange, 
payable  at  sight  or  on  demand,  is: 

1.  If  it  bears  interest,  one  year  after  its   date;   or, 

2.  If  it  does  not  bear  interest,  ten  days  after  its  date,  in 
addition  to  the  time  which  would  suffice,  with  ordinary  dili- 
gence, to  forward  it  for  acceptance. 

Ilistury:     Enacted  March  21,  1872. 

§3135.  APPARENT  MATURITY  OF  NOTE.  The  ap- 
parent maturity  of  a  promissory  note,  payable  at  sight  or  on 
demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  six  months  after  its  date. 

History:     Enacted  March  21,  1872. 

§3136.     SAME.       [AFTER      SIGHT      OR      DEMAND.] 

Where  a  promissory  note  is  payable  at  a  certain  time  after 
sight  or  demand,  such  time  is  to  be  added  to  the  periods 
mentioned  in  the  last  section. 

History:     Enacted  March  21,  1872. 

§3137.  SURRENDER  OF  INSTRUMENT,  WHEN  A 
CONDITION  OF  PAYMENT.  A  party  to  a  negotiable  in- 
strument may  require,  as  a  condition  concurrent  to  its  pay- 
ment by  him: 

1.  That  the  instrument  be  surrendered  to  him,  unless  it  is 
lost  or  destroyed,  or  the  holder  has  other  claims  upon  it;  or, 

2.  If  the  holder  has  a  right  to  retain  the  instrument  and 
does  retain  it,  then  that  a  receipt  for  the  amount  paid, 
or  an  exoneration  of  the  party  paying,  be  written  thereon;  or, 

3.  If  the  instrument  is  lost  or  destroyed,  then  that  the 
holder  give  to  him  a  bond,  executed  by  himself  and  two 
sufficient  sureties,  to  indemnify  him  against  any  lawful 
claim   thereon. 

History:     Enacted  March  21,  1872. 

967 


§§3141-3143  CIVIL  CODE.  [Div.III.Pt.IV. 


ARTICLE  V. 

DLSHONOR  OF  NEGOTIABLIi  INSTRUMENTS. 

§  3141.  Dishonor,  what. 

§  3142.  Notice,  by  wliom  given. 

§  3143.  Form  of  notice. 

§  3144.  Notice,  how  served. 

§  3145.  Notice,  how  served  after   indorser's   death. 

§  3146.  Notice  given  in  ignorance  of  deatli,  valid. 

§  3147.  Notice,  when  to  be  given. 

§  314S.  Notice  of  dishonor,  wlien  to  be  mailed. 

§  3149.  Notice,  how  given  by  agent. 

§  3150.  Additional  time  for  notice  to  be  given  by  indorser. 

§  3151.  Effect  of  notice  of  dishonor. 

§  3141.  DISHONOR,  WHAT.  A  negotiable  instrument 
is  dishonored,  when  it  is  either  not  paid,  or  not  accepted,  ac- 
cording to  its  tenor,  on  presentment  for  the  purpose,  or 
without  presentment,  where  that  is  excused. 

History:     Enacted  March  21,  1872.  • 

§3142.  NOTICE,  BY  WHOM  GIVEN.  Notice  of  the 
dishonor  of  a  negotiable  instrument  may  be  given: 

1.  By  a  holder  thereof;  or, 

2.  By  any  party  to  the  instrument  who  might  be  com- 
pelled to  pay  it  to  the  holder,  and  who  would,  upon  taking 
it  up,  have  a  right  to  reimbursement  from  the  party  to  whom 
the  notice  is  given. 

History:     Enacted  March  21,  1872. 

§  3143.     FORM  OF  NOTICE.     A  notice  of  dishonor  may 
be   given   in   any  form   which   describes   the   instrument   with 
reasonable  certainty,  and  substantially  informs  the  party  re- 
ceiving it  that  the   instrument  has   been   dishonored. 
History:     Enacted  March  21,  1872. 

968 


Tit.XV.ch.l.art.V.]    NOTICE  OK  DISHONOR.  §§3144-3147 

§  3144.  NOTICE,  HOW  SERVED.  A  notice  of  dishon- 
or may  be  given: 

1.  By  delivering  it  to  the  party  to  be  charged,  personally, 
at  any  place;  or, 

2.  By  delivering  it  to  some  person  of  discretion  at  the 
place  of  residence  or  business  of  such  party,  apparently  act- 
ing for  him;  or, 

3.  By  properly  folding  the  notice,  directing  it  to  the  party 
to  be  charged,  at  his  place  of  residence,  according  to  the  best 
information  that  the  person  giving  the  notice  can  obtain,  de- 
positing it  in  the  post  office  most  conveniently  accessible 
from  the  place  where  the  presentment  was  made,  and  pay- 
ing the  postage  thereon. 

HLstory:     Enacted  March  2\,  1872. 

§3145.  NOTICE,  HOW  SERVED  AFTER  INDORS- 
ER'S  DEATH.  In  case  of  the  death  of  a  party  to  whom 
notice  of  dishonor  should  otherwise  be  given,  the  notice 
must  be  given  to  one  of  his  personal  representatives;  or,  if 
there  are  none,  then  to  any  member  of  his  family  who  resid- 
ed with  him  at  his  death;  or,  if  there  is  none,  then  it  must  be 
mailed  to  his  last  place  of  residence,  as  prescribed  by  subdivi- 
sion three  of  the  last  section. 

History:     Enacted  March  21,  1872. 

§  3146.  NOTICE  GIVEN  IN  IGNORANCE  OF  DEATH, 
VALID.  A  notice  of  dishonor  sent  to  a  party  after  his 
death,  but  in  ignorance  thereof,  and  in  good  faith,  is  valid. 

History:     Enacted  March  21,  1872. 

§3147.  NOTICE,  WHEN  TO  BE  GIVEN.  Notice  of 
dishonor,  when  given  by  the  holder  of  an  instrument  or  his 
agent,  otherwise  than  by  mail,  must  be  given  on  the  day  of 
dishonor,  or  on  the  next  business  day  thereafter. 

History:     Enacted  March  21,  1872. 

969 


§5^3148-3151  CIVIL    CODE.  [Div.III,Pt.IV. 

§3148.  NOTICE  OF  DISHONOR,  WHEN  TO  BE 
MAILED.  When  notice  of  dishonor  is  given  by  mail,  it 
must  lie  deposited  in  the  post  office  in  time  for  the  first  mail 
which  closes  after  noon  of  the  first  business  day  succeeding 
the  dishonor,  and  which  leaves  the  place  where  the  instru- 
ment was  dishonored,  for  the  place  to  which  the  notice  should 
be  sent. 

Hi-story:     Enacted  March  21,  1872. 

§3149.  NOTICE,  HOW  GIVEN  BY  AGENT.  When 
the  holder  of  a  negotiable  instrument,  at  the  time  of  its  dis- 
honor, is  a  mere  agent  for  the  owner,  it  is  sufficient  for  him 
to  give  notice  to  his  principal  in  the  same  manner  as  to  an  in- 
dorser,  and  his  principal  may  give  notice  to  any  other  party 
to  be  charged,  as  if  he  were  himself  an  indorser.  And  if  an 
agent  of  the  owner  employs  a  subagent,  it  is  sufficient  for 
each  successive  agent  or  subagent  to  give  notice  in  like 
manner  to  his  own  principal. 

History:     Enacted  March   21',  1872. 

§3150.  ADDITIONAL  TIME  FOR  NOTICE  BY  IN- 
DORSER. Every  party  to  a  negotial)le  instrument,  receiv- 
ing notice  of  its  dishonor,  has  the  like  time  thereafter  to  give 
similar  notice  to  prior  parties  as  the  original  holder  had 
after  its  dishonor.  But  this  additional  time  is  available  only 
to  the  particular  party  entitled  thereto. 

History:     Enacted  March  21,  1872. 

§3151.  EFFECT  OF  NOTICE  OF  DISHONOR.  A  no- 
tice of  the  dishonor  of  a  negotiable  instrument,  if  valid  in 
favor  of  the  party  giving  it,  inures  to  the  benefit  of  all  other 
parties  thereto  whose  right  to  give  the  like  notice  has  not 
then   been  lost. 

History:     Enacted  March  21,  1872. 


970 


Tit.XV.ch.T.art.VT.]    EXCUSE  OF  NOTICE.  §§3155-3157 


ARTICLE  VI. 

EXCUSE  OF  PRESENTMENT  AND  NOTICE. 

§  3155.  Notice  of  dishonor,  when  excused. 

§  3156.  Presentment  and  notice,  when   excused. 

§  .'?157.  Same.     [Full  security  being  received.] 

§  315S.  Delay,  wlien  excused. 

§  3159.  Waiver  of  presentment  and   notice. 

§  3160.  Waiver  of  protest. 

§3155.     NOTICE  OF  DISHONOR,  WHEN  EXCUSED. 

Notice  of  dishonor  is  excused: 

1.  When  the  party  by  whom  it  should  be  given  cannot,  with 
reasonable  diligence,  ascertain  either  the  place  of  residence 
or  business  of  the  party  to  be  charged;  or, 

2.  When  there  is  no  post-office  communication  between 
the  town  of  the  party  by  whom  the  notice  should  be  given 
and  the  town  in  which  the  place  of  residence  or  business  of 
the  party  to  be  charged  is  situated;  or, 

3.  When  the  party  to  be  charged  is  the  same  person  who 
dishonors  the  instrument;  or, 

4.  When  the  notice  is  waived  by  the  party  entitled  thereto. 

Hi.story:     Enacted  March  21,  1872. 

§3156.  PRESENTMENT  AND  NOTICE,  WHEN  EX- 
CUSED. Presentment  and  ncjtice  are  excused  as  to  any 
party  to  a  negotiable  instrument  who  informs  the  holder, 
within  ten  days  before  its  maturity,  that  it  will  be  dishon- 
ored. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  420,  held 
unconstitutional,  see  liistory,  §  4  ante. 

§3157.  SAME.  [FULL  SECURITY  BEING  RE- 
CEIVED.]     If.    before    or    after    the    maturity    of   an    instru- 

971 


§§3158-3160  CIVIL  CODE.  [Div.III,Pt.IV. 

ment,  an  indorser  has  received  full  security  for  the  amount 
thereof,  or  the  maker  has  assigned  all  his  estate  to  him  as 
such  security,  presentment  and  notice  to  him  are  excused. 

History:     Enacted  March  21^  1872. 

§3158.  DELAY,  WHEN  EXCUSED.  Delay  in  present- 
ment, or  in  giving  notice  of  dishonor,  is  excused  when  caused 
by  circumstances  which  the  party  delaying  could  not  have 
avoided  by  the  exercise  of  reasonable  care  and  diligence. 

History:     Enacted  March  21,  1872. 

§  3159.     WAIVER  OF  PRESENTMENT  AND  NOTICE. 

A  waiver  of  presentment  waives  notice  of  dishonor  also,  un- 
less the  contrary  is  expressly  stipulated;  but  a  waiver  of  no- 
tice does  not  waive  presentment. 

History:     Enacted  March  21,  1872. 

§3160.  WAIVER  OF  PROTEST.  A  waiver  of  protest 
on  any  negotiable  instrument  other  than  a  foreign  bill  of  ex- 
change waives  presentment  and  notice. 

History:     Enacted  March  21,  1872. 


972 


Tit.XV,ch.l,art.VI[.]        extinction.  §§3164,3165 


ARTICLE  VII. 

EXTINCTION   OP"   NEGOTIABLE   INSTRUMENTS. 

§  3164.     Obligation   of  party,  wlien   extinguislied. 
SSltlfi.      Revival   of   obligation    [repealed]. 

§  3164.  OBLIGATION  OF  PARTY,  WHEN  EXTIN- 
GUISHED. The  obligation  of  a  party  to  a  negotiable  in- 
strument is  extinguished: 

1.  In  like  manner  with  that  of  parties  to  contracts  in  gen- 
eral ;  or, 

2.  By  payment  of  the  amount  due  upon  the  instrument, 
at  or  after  its  maturity,  in  good  faith  and  in  the  ordinary 
course  of  business,  to  any  person  having  actual  possession 
thereof,  and  entitled  by  its  terms  to  payment. 

History:     Enacted  March  21,  1872. 

§  3165.     REVIVAL  OF  OBLIGATION  [repealed! . 

•     History:      Enacted    Marcli    21,    1872;    repealed    March    30,     1874, 
Code  Anidt.<?.  1873-4,  p.  264. 


973 


§3171 


CIVIL    CODE. 


[Div.III.Pt.IV. 


CHAPTER  II. 

BILLS   OF   EXCHANGE. 

Article  I.  Form  and   Interpretation,   §§  3171-3177. 

II.  Days  of  Grace.  §3181. 

III.  Presentment  for   Acceptance,   §§3185-3189. 

IV.  Acceptance,   §§3193-3199. 

V.  Acceptance   or   Payment   for   Honor,   §§  3203-3207. 

VI.  Presentment   for   Payment,   §§3211-3214. 

VII.  Excuse  of  Presentment  and  Notice,   §§  3218-3220. 

VIH.  Foreign  Bills,  §§3224-3238. 


ARTICLE  I. 


§  31 

71. 

§  31 

72 

§  31 

73 

§31 

74. 

§  31 

"5. 

§  31 

■6. 

§  31 

"7. 

FORM   AND    INTERPRETATION   OF   A    BILL. 

Bill   of   exchange,   what. 

Drawee,  in  case  of  need. 

Bill  in  parts  of  a  set. 

When  must  be  in   a  set. 

Presentment,   etc.,   of  part  of  set. 

Bill,  where  payable. 

Rights  and  obligations  of  drawer. 


§3171.  BILL  OF  EXCHANGE,  WHAT.  A  bill  of  ex- 
change is  an  instrument,  negotiable  in  form,  by  which  one, 
who  is  called  the  drawer,  requests  another,  called  the  drawee, 
to  pay  a  specified  sum  of  money. 


History:     Enacted  March  21,  1872. 

974 


Tit.XV,ch.II,art.l.]  BILL  IN  SETS.  §§3172-3176 

§3172.  DRAWEE,  IN  CASE  OF  NEED.  A  bill  of  ex- 
change may  give  the  name  of  any  person  in  addition  to  the 
drawee,  to  be  resorted  to  in  case  of  need. 

History:     Enacted  March  21,  1S72. 

§3173.  BILL  IN  PARTS  OF  A  SET.  A  bill  of  ex- 
change may  be  drawn  in  any  number  of  parts,  each  part 
stating  the  existence  of  the  others,  and  all  forming  one  set. 

History:     Enacted  March   21,  1872. 

§3174.  WHEN  MUST  BE  IN  A  SET.  An  agreement 
to  draw  a  bill  of  exchange  binds  tlie  drawer  to  execute  it  in 
tliree  parts,  if  the  other  party  to  the  agreement  desires  it. 

History:     Enacted  March  21,  1872. 

§3175.     PRESENTMENT,    ETC.,    OF    PART    OF    SET. 

Presentment,   acceptance,   or  payment,   of  a   single   part   in   a 
set  of  a  bill  of  exchange,  is  sufficient  for  the  whole. 

History:     Enacted  March  2  1,   1S72. 


§  3176.-  BILL,  WHERE  PAYABLE.  A  bill  of  exchange 
is  payable: 

1.  At  the  place  where,  by  its  terms,  it  is  made  payable. 

2.  If  it  specifies  no  place  of  payment,  then  at  the  place  to 
which  it  is  addressed. 

3.  If  it  is  not  addressed  to  any  place,  tlien  at  the  place  of 
residence  or  business  of  the  drawee,  or  wherever  he  may  be 
found.  If  the  drawee  has  no  place  of  business,  or  if  his  place 
of  l)usiness  or  residence  cannot,  with  reasonable  diligence. 
l)e  ascertained,  presentment  for  payment  is  excused,  and  the 
liill   may  be  protested   for  non-payment. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Anidts.   1873-4,  p.   264;  amended  by  Code  Commission,   Act 

975 


^3\77  CIVIL   CODE.  IDiv.lIl.Pt.lV. 

March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  420,  held  unconstitu- 
tional, see  hi'story,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.   1905,  p.  620. 

§3177.     RIGHTS  AND   OBLIGATIONS  OF  DRAWER. 

The  rights  and  obligations  of  the  drawer  of  a  bill  of  ex- 
change are  the  same  as  those  of  the  first  indorser  of  any 
other  negotiable  instrument. 

History:     Enacted  March  21,  1S72. 


976 


Tit.XV,cli.Il,arts.II,lII.]  GRACE— ACCEPTANCE.   §§3181-3186 


ARTICLE  II. 

DAYS  OF  GRACE. 
§  .3181.     Days   of  grace. 

§  3181.     DAYS    OF    GRACE.     Days   of  grace   are   not   al- 
lowed. 

History:     Enacted  March  21,  1872. 


ARTICLE  III. 

PRESENTMENT  FOR  ACCEPTANCE. 

§  a]8.5.     When  a  bill  may  be  presented. 

§  3186.     Presentment,  how  made. 

§  3187.     Presentment  to  joint  drawees. 

§3188.     When    presentment    to    be    made    to    drawee    in    case    of 

need. 
§  3  189.     Presentment,  when  must  be  made. 

§3185.  WHEN  A  BILL  MAY  BE  PRESENTED.  At 
any  time  before  a  bill  of  exchange  is  payable,  the  holder  may 
present  it  to  the  drawee  for  acceptance,  and  if  acceptance  is 
refused,  the  bill  is  dishonored. 

History;     Enacted  March  21j  1872. 

§3186.  PRESENTMENT,  HOW  MADE.  Presentment 
for  acceptance  must  be  made  in  the  following  manner,  as 
nearly  as  by  reasonable  diligence  it  is  practicable: 

1.  The  bill  must  be  presented  by  the  holder  or  his  agent. 

2.  It  must  be  presented  on  a  business  day,  and  within  rea- 
sonable hours. 

3.  It  must  be  presented  to  the  drawee,  or,  if  he  be  absent 

977 


§§3187-3189  CIVIL  code.  [Div.lII.Pt.lV. 

from  liis  place  of  residence  or  business,  to  some  person  hav- 
ing charge  thereof,  or  employed  therein;  and, 

4.  The  drawee,  on  such  presentment,  may  postpone  his  ac- 
ceptance or  refusal  until  the  next  d^y.  If  the  drawee  have 
no  place  of  business,  or  if  his  place  of  business  or  residence 
cannot,  with  reasonable  diligence,  be  ascertained,  present- 
ment for  acceptance  is  excused,  and  the  bill  may  be  protest- 
ed for  non-acceptance. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.   1873-4,  p.   265. 

§  3187.     PRESENTMENT     TO       JOINT       DRAWEES. 

Presentment  for  acceptance  to  one  of  several  joint  drawees, 
.and  refusal  by  him,  dispenses  with  presentment  to  the  others. 

History:     Enacted  March  21,  187  2. 

§3188.  WHEN  PRESENTMENT  TO  BE  MADE  TO 
DRAWEE  IN  CASE  OF  NEED.  A  bill  of  exchange  which 
specifies  a  drawee  in  case  of  need,  must  be  presented  to  him 
for  acceptance  or  payment,  as  the  case  may  be,  before  it  can 
be  treated  as  dishonored. 

History:     Enacted  March  21,  1872. 

§3189.     PRESENTMENT,    WHEN    MUST    BE    MADE. 

When  a  bill  of  exchange  is  payable  at  a  specified  time  after 
sight,  the  drawer  and  indorsers  are  exonerated  if  it  is  not 
presented  for  acceptance  within  ten  days  after  the  time 
which  would  suffice,  with  ordinary  diligence,  to  forward  it 
for  acceptance,  unless  presentment  is  excused. 

History:     Enacted  March  21,  1872. 


978 


Tit.XV,ch.II,art.IV.]       ACCEPTANCE.  §§3193-3195 


ARTICLE  IV. 

ACCEPTANCE. 

§  3193.  Acceptance,   how  made. 

§  3194.  Holder  entitled  to  acceptance  on  face  of  bill. 

§  319.5.  What  acceptance  sufficient  with  consent  of  holder. 

§  3196.  Acceptance  by  separate  instrument. 

§  3197.  Promise    to    accept,    when    equivalent    to    acceptance. 

§  3198.  Cancelation  of  acceptance. 

§  3199.  What   is  admitted   by  acceptance. 

§3193.  ACCEPTANCE,  HOW  MADE.  .\n  acceptance  of 
a  bill  ftiust  be  made  in  writing,  by  the  drawee  or  by  an  ac- 
ceptor for  honor,  and  may  be  made  by  the  acceptor  writing 
his  name  across  the  face  of  the  bill,  with  or  without  other 
words. 

History:     Enacted  March  21,  1872. 

§3194.  HOLDER  ENTITLED  TO  ACCEPTANCE  ON 
FACE  OF  BILL.  The  holder  of  a  bill  of  exchange,  if  en- 
titled to  an  acceptance  thereof,  may  treat  the  bill  as  dishon- 
ored if  the  drawee  refuses  to  write  across  its  face  an  uncjuali- 
fied  acceptance. 

HLstory:     Enacted  March  21,  1872. 

§  3195.  WHAT  ACCEPTANCE  SUFFICIENT  WITH 
CONSENT  OF  HOLDER.  The  holder  of  a  bill  of  ex- 
change may,  without  prejudice  to  his  rights  against  prior 
parties,  receive  and  treat  as  a  sufficient  acceptance: 

1.  An  acceptance  written  upon  any  part  of  the  bill,  or  upon 
a  separate  paper; 

2.  An  acceptance  qualified  so  far  only  as  to  make  the  bill 
payable  at  a  particular  place  within  the  city  or  town  in  which, 
if  the  acceptance  was  unqualified,  it  would  be  payable;  or, 

979 


§§3196-3199  CIVIL  code.  [Div.III.Pt.IV. 

3.  A  refusal  by  the  drawee  to  return  the  bill  to  the  holder 
after  presentment,  in  which  case  the  bill  is  payable  immedi- 
ately, without  regard  to  its  terms. 

HLstorj  :     Enacted  March  21,  1872. 

§3196.  ACCEPTANCE  BY  SEPARATE  INSTRU- 
MENT. The  acceptance  of  a  bill  of  exchange,  by  a  separate 
instrument,  binds  the  acceptor  to  one,  who,  upon  the  faith 
thereof,  has  the  bill  for  value  or  other  good  consideration. 

History:     Enacted  March  21,  1S72. 

§3197.  PROMISE  TO  ACCEPT,  WHEN  EQUIVA- 
LENT TO  ACCEPTANCE.  An  unconditional  promise,  in 
writing,  to  accept  a  bill  of  exchange,  is  a  sufficient  acceptance 
thereof,  in  favor  of  every  person  who  upon  the  faith  there- 
of has  taken  the  bill  for  value. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  421,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.   1905,  p.   621 

§3198.  CANCELATION  OF  ACCEPTANCE.  The  ac- 
ceptor of  a  bill  of  exchange  may  cancel  his  acceptance  at  any 
time  before  delivering  the  bill  to  the  holder,  and  before  the 
holder  has,  with  the  consent  of  the  acceptor,  transferred  his 
title  to  another  person  who  has  given  value  for  it  upon  the 
faith  of  such  acceptance. 

History:     Enacted  March  21,  1872. 

§3199.     WHAT   IS   ADMITTED     BY     ACCEPTANCE. 

The  acceptance  of  a  bill  of  exchange  admits  the  signature  of 
the  drawer,  but  does  not  admit  the  signature  of  any  indorser 
to  be  genuine. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   265. 

980 


Tit.XV.ch.II,art.V.]    HONOR,   ACCEPTANCE  FOR.  §§  3203-3206 


ARTICLE  V. 

ACCEPTANCE  OR  PAYMENT  FOR  HONOR. 

§  3203.     When  bill  may  be  accepted  or  paid  for  honor. 

§  3204.      Holder  of  bill  of  exchange  bound  to  accept  payment  for 

honor. 
§  3205.     Acceptance  for  lionor,  how   made. 
§  3206.     How  enforced. 
§  3207.     Notice  of  dishonor  not  excused  by  acceptance  for  honor. 

§  3203.  WHEN  BILL  MAY  BE  ACCEPTED  OR  PAID 
FOR  HONOR.  On  the  dishonor  of  a  bill  of  exchange  by 
the  drawee,  and,  in  case  of  a  foreign  bill,  after  it  has  been 
duly  protested,  it  may  be  accepted  or  paid  by  any  person,  for 
the  honor  of  any  party  thereto. 

History:     Enacted  March  21,  1872. 

§3204.  HOLDER  OF  BILL  OF  EXCHANGE  BOUND 
TO  ACCEPT  PAYMENT  FOR  HONOR.  The  holder  of  a 
bill  of  exchange  is  not  bound  to  allow  it  to  be  accepted  for 
honor,  but  is  bound  to  accept  payment  for  honor. 

History:     Enacted  March  21,  1872. 

§3205.     ACCEPTANCE    FOR    HONOR,    HOW    MADE. 

An  acceptor  or  payer  for  honor  must  write  a  memorandum 
upon  the  bill,  stating  therein  for  whose  honor  he  accepts 
or  pays,  and  must  give  notice  to  such  parties,  with  reasonable 
diligence,  of  the  fact  of  such  acceptance  or  payment.  Hav- 
ing done  so,  he  is  entitled  to  reimbursement  from  such  par- 
ties, and  from  all  parties  prior  to  them. 

History:     Enacted  March  21,  1872. 

§3206.  HOW  ENFORCED.  A  bill  of  exchange  which 
has  been  accepted  for  honor   must  be  presented  at  its   ma- 

981 


§3207  CIVIL  CODE.  [DIv.III.Pt.IV. 

turity  to  the  drawee  for  payment,  and  notice  of  its  dishonor 
by  him  must  be  given  to  the  acceptor  for  honor,  in  like 
manner  as  to  an  indorser;  after  which  the  acceptor  for  honor 
must   pay  the  bill. 

History;     Enacted  March  21,  1872. 

§  3207.  NOTICE  OF  DISHONOR  NOT  EXCUSED 
BY  ACCEPTANCE  FOR  HONOR.  The  acceptance  of  a 
bill  of  exchange  for  honor  does  not  excuse  the  holder  from 
giving  notice  of  its  dishonor  by  the  drawee. 

History:     Enacted  March  21,  1872. 


982 


Tit.XV,ch.ll,art.VI.]     PRESENTMENT.  §§3211-3214 


ARTICLE  VI. 

PRESENTMENT  FOR  PAYMENT. 

§3211.  Presentment,  when  bill   not  accepted,  where  made. 

§  3212.  Presentment  of  bill,  payable  at  particular  place. 

§  3213.  Effect    of    delay    in    presentment,    in    certain   cases. 

§  3214.  Effect  in  other  cases. 

§3211.  PRESENTMENT,  WHEN  BILL  NOT  AC- 
CEPTED, WHERE  MADE.  If  a  bill  of  exchange  is  by  its 
terms  payable  at  a  particular  place,  and  is  not  accepted  on 
presentment,  it  mtist  be  presented  at  the  same  place  for 
payment,  when  presentment  for  payment  is  necessary. 
History:     Enacted  March  21,  1872. 

§3212.  PRESENTMENT  OF  BILL,  PAYABLE  AT 
PARTICULAR  PLACE.  A  bill  of  exchange,  accepted  pay- 
able at  a  particular  place,  must  be  presented  at  that  place 
for  payment,  when  presentment  for  payment  is  necessary, 
and  need  not  be  presented  elsewhere. 

History:     Enacted  March  21,  1872. 

§3213.  EFFECT  OF  DELAY  IN  PRESENTMENT,  IN 
CERTAIN  CASES.  If  a  bill  of  exchange,  payable  at  sight 
or  on  demand,  without  interest,  is  not  duly  presented  for 
payment  within  ten  days  after  the  time  in  which  it  could, 
with  reasonable  diligence,  be  transmitted  to  the  proper  place 
for  such  presentment,  the  drawer  and  indorsers  are  exoner- 
ated,  unless   such  presentment  is  excused. 

History:     Enacted  March  21,  1S72. 

§3214.  EFFECT  IN  OTHER  CASES.  Mere  delay  in 
presenting  a  bill  of  exchange  payable  with  interest,  at  sight 
or  on  demand,  does  not  exonerate  any  party  thereto. 

History:     Enacted  March  21,  1872. 

983 


§§3218-3220  CIVJL  CODE.  IDiv.III.Pl.lV. 


ARTICLE  VII. 

EXCUSE  OF  PRESENTMENT  AND  NOTICE. 

§  3218.      Presentment,  when  excused. 

§  3219.     Delay,   when   excused. 

§  3220.     Presentnitnt  and  notice,  when  excused. 

§3218.     PRESENTMENT,     WHEN      EXCUSED.       The 

presentment  of  a  bill  of  exchange  for  acceptance  is  excused 
if  the  drawee  has  not  capacity  to  accept  it. 

History:     Enacted  March  21,  1872. 

§3219.  DELAY,  WHEN  EXCUSED.  Delay  in  the  pre- 
sentment of  a  bill  of  exchange  for  acceptance  is  excused, 
when  caused  by  circumstances  over  which  the  holder  has  no 
control. 

History:     Enacted  March  21,  1872. 

§3220.  PRESENTMENT  AND  NOTICE,  WHEN  EX- 
CUSED. Presentment  of  a  bill  of  exchange  for  acceptance 
or  payment,  and  notice  of  its  dishonor,  are  excused  as  to 
the  drawer,  if  he  forbids  the  drawee  to  accept,  or  the  ac- 
ceptor to  pay  the  bill;  or  if,  at  the  time  of  drawing,  he  ha^l 
no  reason  to  believe  that  the  drawee  would  accept  or  pay 
the    same. 

History:     Enacted  March  21.  1872. 


984 


Tit.XV.ch.II.art.VlTT.]    FOREIGN  BILLS.  §§3224-3226 


ARTICLE  VIII. 

FOREIGN  BILLS. 

§  3224.  Definitions. 

§  3225.  Protest  necessary. 

§  3226.  Protest,  by   whom  made. 

§  3227.  Protest,  how  made. 

§  322S.  Protest,   where  made. 

§  3229.  Protest,  when   to  be  made. 

§  3230.  Protest,  when  excused. 

§  3231.  Notice  of  protest,  how  given. 

§  3232.  Waiver  of  protest. 

§  3233.  Declaration  before  payment  for  honor. 

§  3234.  Damages  allowed  on  dishonor  of  foreign  bill. 

§  3235.  Rate  of  damages. 

§  3236.  Interest  on  amount  of  protested  bill. 

§  3237.  Damages,  how  estimated. 

§  3238.  Same.      [In  foreign  money.] 


§3224.  DEFINITIONS.  An  inland  bill  of  exchange  is 
one  drawn  and  payable  within  this  state.  All  others  are  for- 
eign. 

HiNtorj-:     Enacted  March  21,  1872. 

§3225.  PROTEST  NECESSARY.  Notice  of  the  dis- 
lionor  of  a  foreign  bill  of  exchange  can  be  given  only  by  no- 
tice of  its  protest. 

History:     Enacted  March  21,  1872. 


§3226.  PROTEST,  BY  WHOM  MADE.  Protest  must 
be  made  by  a  notary  public,  if  with  reasonable  diligence  one 
can  be  obtained;  and  if  not,  then  by  any  reputable  person, 
in   the   presence  of  two  witnesses. 

Hi.st«ry:     Enacted  March  21,  1872. 

985 


§§3227-3231  civil  code.  [Div.IIT,Pt.IV. 

§  3227.  PROTEST,  HOW  MADE.  Protest  must  he 
made  by  an  instrument  in  writing,  giving  a  literal  copy  of  the 
bill  of  exchange,  with  all  that  is  written  thereon,  or  annex- 
ing the  original;  stating  the  presentment,  and  the  manner 
in  which  it  was  made;  the  presence  or  absence  of  the  drawee 
or  acceptor,  as  the  case  may  be;  the  refusal  to  accept  or  to 
pay,  or  the  inability  of  the  drawee  to  give  a  binding  accept- 
ance; and  in  case  of  refusal,  the  reason  assigned,  if  any; 
and,  finally,  protesting  against  all  the  parties  to  be  charged. 

History:     Enacted  March  21,  1872. 

§  3228.  PROTEST,  WHERE  MADE.  A  protest  for  non- 
acceptance  must  be  made  in  the  city  or  town  in  which  the 
bill  is  presented  for  acceptance,  and  a  protest  for  non-pay- 
ment in  the  city  or  town  in  which  it  is  presented  for  pay- 
ment. 

HLstory:     Enacted  March  21,  1872. 

§3229.  PROTEST,  WHEN  TO  BE  MADE.  A  protest 
must  be  noted  on  the  day  of  presentment,  or  on  the  next 
business  day;  but  it  may  be  written  out  at  any  time  there- 
after. 

History:     Enacted  March  21,  1872. 

§  3230.  PROTEST,  WHEN  EXCUSED.  The  want  of  a 
protest  of  a  foreign  bill  of  exchange,  or  delay  in  making  the 
same,  is  excused  in  like  cases  with  the  want  or  delay  of  pre- 
sentment. 

History:     Enacted  March  21.  1S72. 

§3231.  NOTICE  OF  PROTEST,  HOW  GIVEN.  No- 
tice of  protest  must  be  given  in  the  same  manner  as  notice 
of  dishonor,  except  that  it  may  be  given  b}'  the  notary  who 
makes  the  protest. 

History:     Enacted  March  21,  1872. 

986 


Tit.XX'.ch.II.art.VlII.]    WAIVER  OF  PROTEST.     §§3232-3235 

§3232.  WAIVER  OF  PROTEST.  If  a  foreign  bill  of 
exchange  on  its  face  waives  protest,  notice  of  dishonor  may 
be  given  to  any  party  thereto,  in  like  manner  as  of  an  in- 
land bill;  except  that  if  any  indorser  of  such  a  bill  expressly 
requires  protest  to  be  made,  by  a  direction  written  on  the  bill 
at  or  before  his  indorsement,  protest  must  be  made,  and  no- 
tice  thereof  given  to  him  and  to  all  subsequent  indorsers. 

History:     Enacted  March  21,  1872. 

§3233.  DECLARATION  BEFORE  PAYMENT  FOR 
HONOR.  One  who  pays  a  foreign  bill  of  exchange  for  hon- 
or must  declare,  before  payment,  in  the  presence  of  a  per- 
son authorized  to  make  protest,  for  whose  honor  he  pays 
the  same,  in  order  to  entitle  him  to  reimbursement. 

HiHtory:     Enacted  March  21,  1872. 

§3234.  DAMAGES  ALLOWED  ON  DISHONOR  OF 
FOREIGN  BILL.  Damages  are  allowed  as  hereinafter  pre- 
scribed, as  a  full  compensation  for  interest  accrued  before 
notice  of  dishonor,  re-exchange,  expenses,  and  all  other  dam- 
ages, in  favor  of  holders  for  value  only,  upon  bills  of  ex- 
change drawn  or  negotiated  within  this  state,  and  protested 
for  non-acceptance  or  non-payment. 

HLstory:     Enacted  March  21,  1872. 

§  3235.  RATE  OF  DAMAGES.  Damages  are  allowed  un- 
der the  last  section  upon  bills  drawn  upon  any  person: 

1.  If  drawn  upon  a  person  in  this  state,  two  dollars  upon 
each  one  hundred  dollars  of  the  principal  sum  specified  in 
the  bill; 

2.  If  drawn  upon  a  person  out  of  this  state,  five  dollars 
upon  each  one  hundred  dollars  of  the  principal  sum  speci- 
fied in  the  bill; 

3.  If  drawn  upon  a  person  in  any  place  in  a  foreign  coun- 

987 


§§3236-3238  civil  code.  [Div.IlI.Pt.IV. 

try,  fifteen  dollars  upon  each  one  hundred  dollars  of  the 
principal   sum   specified  in   the   bill. 

Historj-:  Enacted  March  21,  1S72;  amended  by  Code  Commis- 
sion, Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  421,  lield 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,   1905.  Stats,  and  Amdts.   1905,  p.  621. 

§3236.     INTEREST    ON    AMOUNT    OF    PROTESTED 

BILL.  From  the  time  of  notice  of  dishonor  and  demand  of 
payment,  lawful  interest  must  be  allowed  upon  the  aggre- 
gate amount  of  the  principal  sum  specified  in  the  bill,  and 
the  damages  mentioned  in  the  preceding  section. 

History:     Enacted  March  21,  1S72. 

§  3237.  DAMAGES,  HOW  ESTIMATED.  If  the  amount 
of  a  protested  bill  of  exchange  is  expressed  in  money  of  the 
United  States,  damages  are  estimated  upon  such  amount 
without  regard  to  the  rate  of  exchange. 

History:     Enacted  March  21,  1872. 

§3238.  SAME.  [IN  FOREIGN  MONEY.]  If  the 
amount  of  a  protested  bill  of  exchange  is  expressed  in  for- 
eign money,  damages  are  estimated  upon  the  value  of  a  sim- 
ilar bill  at  the  time  of  protest,  in  the  place  nearest  to  the 
place  where  the  bill  was  negotiated  and  where  such  bills  are 
currently  sold. 

History:     Enacted  March  21,  1872. 


988 


Tit.XV,ch.III.]  PROMISSORY  NOTES.  §§-3244-3247 


CHAPTER  III. 

PROMISSORY   NOTES. 

§3iM.  I'romissory   note,   what. 

§  3245.  Certain    Instruments    promissory    notes. 

§  3246.  Bill    of   exchange,    when   converted   into   a   note. 

§  3247.  Certain   secti'ons   applicable   to   notes. 

§  3248.  Effect   of  delay   in   presentment. 

§3244.  PROMISSORY  NOTE,  WHAT.  A  promissory 
note  is  an  instrument,  negotiable  in  form,  whereby  the  signer 
promises  to  pay  a  specified  sum  of  money. 

History:     Enacted  March  21,  1872. 

§3245.  CERTAIN  INSTRUMENTS  PROMISSORY 
NOTES.  An  instrument  in  the  form  of  a  bill  of  exchange, 
but  drawn  upon  and  accepted  by  the  drawer  himself,  is  to 
be  deemed  a  promissory  note. 

HIst«»ry:  ElnactRd  Maich  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  IC,  1901.  Stats,  and  Amdts.  iaOO-1.  p.  421,  held 
unconstitutional,  see  history,    §  4   ante. 

§  3246.  BILL  OF  EXCHANGE,  WHEN  CONVERTED 
INTO  A  NOTE.  A  bill  of  exchange,  if  accepted,  with  the 
consent  of  the  owner,  by  a  person  other  than  the  drawee, 
or  an  acceptor  for  honor,  becomes  in  effect  the  promissory 
note  of  such  person,  and  all  prior  parties  thereto  are  exon- 
erated. 

History:     Enacted  March  21,  1872. 

§3247.  CERTAIN  SECTIONS  APPLICABLE  TO 
NOTES.     Chapter   one   of  this   title,  and  sections   thirty-one 

989 


§3248  CIVIL  CODE.  [Div.III.Pt.IV. 

hundred  and  eighty-one  and  thirtj^-two  hundred  and  fourteen 
of  this  code,  apply  to  promissory  notes. 

History:     Enacted  March  21,  1ST2. 

§  3248.     EFFECT  OF  DELAY  IN  PRESENTMENT.     If 

a  promissory  note,  payable  on  demand,  or  at  sight,  without 
interest,  is  not  duly  presented  for  payment  within  six  months 
from  its  date,  the  indorsers  thereof  are  exonerated,  unless 
such  presentment  is  excused. 

History:     Enacted  March  21,  1872. 


990 


Tit.XV,ch.IV.]       CHECKS— RULES  AS  TO.  §§3254,3255 


CHAPTER  lY. 

CHECKS. 

§  3254.      Check,  what. 

§  3255.      Rule.s   applicable   to   checks. 

§  3254.  CHECK,  WHAT.  A  check  is  a  bill  of  exchange 
drawn  upon  a  bank  or  banker,  or  a  person  described  as  such 
upon  the  face  thereof,  and  payable  on  demand,  without  in- 
terest. 

History:     Enacted  March  21,  1ST2. 


§  3255.  RULES  APPLICABLE  TO  CHECKS.  A  check 
is  suljject  to  all  the  provisions  of  this  code  concerning-  bills 
of  exchange,  except  that: 

1.  The  drawer  and  indorsers  are  exonerated  by  delay  in 
presentment,  only  to  the  extent  of  the  injury  which  they 
suffer  thereby; 

2.  An  indorsee,  after  its  apparent  maturity,  but  without/ 
actual  notice  of  its  dishonor,  acciuires  a  title  equal  to  that 
of  an  indorsee  before  such  period. 

Hi.story:     Enacted  March  21,  1S72. 


991 


§§3261-3268  civil  code.  [Div.III.Pt.IV. 


CHAPTER  V. 

BONDS,  BANK  NOTES,  AND  CERTIFICATES  OF  DEPOSIT. 

§  3261.     Bank   note   negotiable   after  payment. 
§  3262.     Title  acquired  by  indorsee   [repealed]. 

§3261.  BANK  NOTE  NEGOTIABLE  AFTER  PAY- 
MENT. A  bank  note  remains  negotiable,  even  after  it  has 
been  paid  by  the  maker. 

History:     Enacted  March  21,  1872. 

§3262.     TITLE  ACQUIRED  BY  INDORSEE  [repealed j. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.  265. 


TITLE  XVI. 

GENERAL  PROVISIONS. 
§  3268.     Parties    may   waive    provisions    of   code. 

§3268.  PARTIES  MAY  WAIVE  PROVISIONS  OF 
CODE,  Except  where  it  is  otherwise  declared,  the  pro- 
visions of  the  foregoing  fifteen  titles  of  this  part,  in  re- 
spect to  the  rights  and  obligations  of  parties  to  contracts, 
are  subordinate  to  the  intention  of  the  parties,  when  ascer- 
tained in  the  manner  prescribed  by  the  chapter  on  the  inter- 
pretation of  contracts;  and  the  benefit  thereof  may  be  waived 
by  any  party  entitled  thereto,  unless  such  waiver  would  be 
against  public  policy. 

Hi.«»tory:     Enacted  March  21,  1S72. 

992 


DIVISION  FOURTH. 

Part  I.     Relief,  §§3274-3423. 

II.     Special    Relations   of   Debtor   and    Creditor,   §§3429- 

3473.- 

III.  Nuisance,  §§3479-3503. 

IV.  Maxims  of  Jurisprudence.  §§3509-3543. 


993 


Div.lV,Tit.I.]  SPECIFIC    RELIEF— FORFEITURE.  §§  3274,3275 


PART  I. 

RELIEF. 

Title   I.     Relief  in  General,  §§3274,  3275. 

II.     Compensatory    Relief,    §§3281-3360. 
III.     Specific    and    Preventive    Relief.    §§  3366-3423. 


TITLE  I. 

RELIEF  IN  GENERAL. 

§  3274.      Species   of   relief. 

§  3275.      Relief  in  case  of  forfeitui-e. 

§3274.  SPECIES  OF  RELIEF.  As  a  general  rule,  com- 
pensation is  tlie  relief  or  remedy  provided  by  the  law  of  this 
state  for  the  violation  of  private  rights,  and  the  means  of 
securing  their  observance;  and  specific  and  preventive  relief 
may  be  given  in  no  other  cases  than  those  specified  in  this 
part  of  the  civil  code. 

Hi.story:     Enacted  Mareli  -1,  1872. 

§  3275.  RELIEF  IN  CASE  OF  FORFEITURE.  When- 
ever, by  the  terms  of  an  obligation,  a  party  thereto  incurs 
a  forfeiture,  or  a  loss  in  the  nature  of  a  forfeiture,  by  reason 
of  his  failure  to  comply  with  its  provisions,  he  may  be  re- 
lieved therefrom,  upon  making  full  compensation  to  the 
other  party,  except  in  case  of  a  grossly  negligent,  wilful,  or 
fraudulent  breach  of  duty. 

History:     Enacted  March  21,  1872. 


995 


§3281  CIVIL  CODE.  [Div.IV,Pt.l. 

TITLE  II. 

COMPENSATORY  RELIEF. 

Chapter  I.     Damages  in   General,  §§  3281-3294. 
II.     Measure  of  Damages,  §§3300-3360. 


CHAPTER  I. 

DAMAGES  IN  GENERAL. 

Article  I.     General  Principles,  §§3281-3283. 

II.     Interest' as  Damages,  §§3287-3290. 
III.     Exemplary  Damages,  §  3294. 


ARTICLE  I. 

GENERAL  PRINCIPLES. 

§  3281.      Person   suffering   detriment   may    recover   damages. 

§  3282.      Detriment,  wliat. 

§  3283.      Injuries   resulting   or   probable   after   suit   brought. 


§3281.  PERSON  SUFFERING  DETRIMENT  MAY 
RECOVER  DAMAGES.  Every  person  who  suffers  detri- 
ment from  thf  unlawful  act  or  omission  of  another,  may  re- 
cover from  the  person  in  fault  a  compensation  therefor  in 
money,  which   is   called   damages. 

HiHtory:     Enacted  March   21,    1S72. 

996 


Tit.II,ch.I.art.I.]    DETRIMENT— INJURIES.  §§3282,3283 

§3282.  DETRIMENT,  WHAT.  Detriment  is  a  loss  or 
harm  suffered  in  person  or  property. 

History:     Enacted  March  21,  1872. 

i!3283.  INJURIES  RESULTING  OR  PROBABLE 
AFTER  SUIT  BROUGHT.  Damages  may  be  awarded,  in 
a  judicial  proceeding,  for  detriment  resulting  after  the  com- 
mencement thereof,  or  certain  to  result  in  the  future. 

History:     Enacted  March  21,  1872. 


997 


§§3287-3290  civil  code.  [Div.IV.Pt.I. 


ARTICLE  II. 

INTEREST  AS  DAMAGES. 

§  3287.     Person  entitled  to  recover  damages  may  recover  Interest 

thereon. 
§  3288.     In  action   other   than   contract. 
§  3289.     Limit  of  rate  by  contract. 
§  3290.      Acceptance  of  principal  waives  claim  to  Interest. 

§3287.  PERSON  ENTITLED  TO  RECOVER  DAM- 
AGES MAY  RECOVER  INTEREST  THEREON.  Every 
person  who  is  entitled  to  recover  damages  certain,  or  capa- 
ble of  being  made  certain  by  calculation,  and  the  right  to 
recover  which  is  vested  in  him  upon  a  particular  day,  is  en- 
titled also  to  recover  interest  thereon  from  that  day,  except 
during  such  time  as  the  debtor  is  prevented  by  law,  or  by 
the  act  of  the  creditor,  from  paying  the  debt. 

History:     Enacted  March  21,  1872. 

§3288.     IN   ACTION   OTHER  THAN   CONTRACT.     In 

an  action  for  the  breach  of  an  obligation  not  arising  from 
contract,  and  in  every  case  of  oppression,  fraud,  or  malice, 
interest  may  be  given,  in  the  discretion  of  the  jury. 

History:     Enacted  March  21,  1872. 

§3289.  LIMIT  OF  RATE  BY  CONTRACT.  Any  legal 
rate  of  interest  stipulated  by  a  contract  remains  chargeable 
after  a  breach  thereof,  as  before,  imtil  the  contract  is  super- 
seded by  a  verdict  or  other  new  obligation. 

HLstory:     Enacted  March  21,  187  2. 

§3290.  ACCEPTANCE  OF  PRINCIPAL  WAIVES 
CLAIM  TO  INTEREST.  Accepting  payment  of  the  whole 
principal,  as  such,  waives  all  claim  to  interest. 

History:     Enacted  March  21,  1872. 

998 


Tit.II,ch.l,art.ni.]         EXEMPLARY   DAMAGES.  §3294 


ARTICLE  III. 

EXEMPLARY  DAMAGES. 
§  3294.      Exemplary    damages,    in    what    cases    allowed. 

§3294.  EXEMPLARY  DAMAGES,  IN  WHAT  CASES 
ALLOWED.  In  an  action  for  the  breach  of  an  obligation 
not  arising  from  contract,  where  the  defendant  has  been 
guilty  of  oppression,  fraud,  or  malice,  express  or  implied,  the 
plaintiff,  in  addition  to  the  actual  damages,  may  recover  dam- 
ages for  the  sake  of  example  and  by  way  of  punishing  the  de- 
fendant. 

Hi.story:  Enacted  March  21,  1872;  amended  by  Code  tommis- 
sion,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  d.  421.  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,   1905,  Stats,  and  Amdts.   1905,  p.   621. 


CHAPTER  II. 

MEASURE  OF  DAMAGES. 

Article  I.  Damages  for  Breach  of  Contract,  §§3300-3319. 

II.  Damages   for   Wrongs,   §§3333-3341. 

III.  Penal   Damages,   §§  3344-3348. 

IV.  General  Provisions,  §§  3353-3360. 


999 


§!<330n  CIVIL    CODE.  fDiv.IV.Pt.l. 


ARTICLE  I. 

DAMAGES  FOR   BREACH   OF  CONTRACT. 

§  3300.  Measure  of  damages  for  breach  of  contract. 

§  3301.  Damages  must  be  certain. 

§  3302.  Breach  of  contract  to  pay  liquidated  sum. 

§  3303.  Dishonor  of  foreign  bills  of  exchange. 

§  3304.  Detriment  caused  by  breach  of  covenant  of  seizin,  etc. 
"What  is. 

§  3305.  Detriment  caused  by  breach  of  covenant  against  en- 
cumbrances, is  what. 

§  3306.  Breach  of  agreement  to  convey  real  property. 

§  3307.  Breach  of  agreement  to  buy  real  property. 

§  3308.  Breach  of  agreement  to  sell  personal  property,  not  paid 
for. 

§  3309.  Breach  of  agreement  to  sell  personal  property  paid  for. 

§  3310.  Breach  of  agreement  to  pay  for  personal  property  sold. 

§  3311.  Breach  of  agreement  to  buy  personal  property. 

§  3312.  Breach  of  warranty  of  title  to  personal  property. 

§  3313.  Breach  of  warranty   of  quality  of  personal  property. 

§  3314.  Breach  of  warranty  of  quality  for  special  purpose. 

§  3315.  Breach  of  carrier's  obligation  to  receive  goods,  etc. 

§  3316.  Breach   of  carrier's   obligation   to   deliver. 

§  3317.  Carrier's  delay. 

§  3318.  Breach  of  warranty  of  authority. 

§  3319.  Breach  of  promise   of   marriage. 

§3300.  MEASURE  OF  DAMAGES  FOR  BREACH  OF 
CONTRACT.  For  the  breach  of  an  obligation  arising  from 
contract,  the  measure  of  damages,  except  where  otherwise 
expressly  provided  by  this  code,  is  the  amount  which  will 
compensate  the  party  aggrieved  for  all  the  detriment  prox- 
imately caused  thereby,  or  which,  in  the  ordinary  course  of 
things,  would  be  likely  to   result   therefrom. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  266. 

1000 


Tit.lLcIi.II.ai-t.l.J       DAMAGES,   CERTAIN.  §§3301-3304 

§  3301.  DAMAGES  MUST  BE  CERTAIN.  No  damages 
can  be  recovered  for  a  breach  of  contract  which  are  not 
clearly  ascertainable  in  both  their  nature  and  origin. 

History:     Enacted  March  21,  1872. 

§3302.  BREACH  OF  CONTRACT  TO  PAY  LIQUI- 
DATED SUM.  The  detriment  caused  by  the  breach  of  an 
obligation  to  pay  money  only,  is  deemed  to  be  the  amount 
due  by  the  terms  of  the  obligation,  with  interest  thereon. 

History:     Enacted  March  21,  1872. 

§3303.  DISHONOR  OF  FOREIGN  BILLS  OF  EX- 
CHANGE. For  the  dishonor  of  foreign  bills  of  exchange 
the  damages  are  prescribed  by  sections  thirty-two  hundred 
and  thirty-five,  thirty-two  hundred  and  tliirty-seven,  and 
thirty-two   hundred   and   thirty-eight. 

History:     Enacted  March  21,  1872. 

§3304.  DETRIMENT  CAUSED  BY  BREACH  OF 
COVENANT  OF  SEIZIN,  ETC.,  WHAT  IS.  The  detri- 
ment caused  by  the  breach  of  a  covenant  of  "seizin,"  of 
"right  to  convey,"  of  "warranty,"  or  of  "quiet  enjoyment," 
in  a  grant  of  an  estate  in  real  property,  is  deemed  to  be: 

1.  The  price  paid  to  the  grantor;  or,  if  the  breach  is  par- 
tial only,  such  proportion  of  the  price  as  the  value  of  the 
property  affected  by  the  breach  bore  at  the  time  of  the  grant 
to  the  value  of  the  whole  property; 

2.  Interest  thereon  for  the  time  during  which  the  grantee 
derived  no  Ijenefit  from  the  property,  not  exceeding  five 
years; 

3.  Any  expenses  properly  incurred  l)y  the  covenantee  in 
defending  his  possession. 

History:     Enacted  March  21,  1872. 

1001 


§§3305-3308  civil  code.  [Div.IV.l't.I. 

§3305.  DETRIMENT  CAUSED  BY  BREACH  OF 
COVENANT   AGAINST   ENCUMBRANCES,   IS   WHAT. 

The  detriment  caused  by  the  breach  of  a  covenant  against 
encumbrances  in  a  grant  of  an  estate  in  real  property  is 
deemed  to  be  the  amount  which  has  been  actually  expended 
by  the  covenantee  in  extinguishing  either  the  principal  or 
interest  thereof,  not  exceeding  in  the  former  case  a  propor- 
tion of  the  price  paid  to  the  grantor  equivalent  to  the  rela- 
tive value  at  the  time  of  the  grant  of  the  property  afrected 
by  the  breach,  as  compared  with  the  whole,  or,  in  the  lat- 
ter case,   interest  on   a   like  amount. 

History:     Enacted  March  21,  1872. 

§3306.  BREACH  OF  AGREEMENT  TO  .CONVEY 
REAL  PROPERTY.  The  detriment  caused  by  the  breach 
of  an  agreement  to  convey  an  estate  in  real  property,  is 
deemed  to  be  the  price  paid,  and  the  expenses  properly  in- 
curred in  examinina:  the  title  and  preparing  the  necessary  pa- 
pers, with  interest  thereon;  but  adding  thereto,  in  case  -of 
bad  faith,  the  difference  between  the  price  agreed  to  be  paid 
and  the  value  of  the  estate  agreed  to  be  conveyed,  at  the 
time  of  the  breach,  and  the  expenses  properly  incurred  in 
preparing  to  enter  upon  the  land. 

HLsfory:     Enacted  March  21,  1872. 

§3307.  BREACH  OF  AGREEMENT  TO  BUY  REAL 
PROPERTY.  The  detriment  caused  by  the  breach  of  an 
agreement  to  purchase  an  estate  in  real  property,  is  deemed 
to  be  the  excess,  if  any,  of  the  amount  which  would  have 
been  due  to  the  seller,  under  the  contract,  over  the  value  of 
the  property  to  him. 

History:     Enacted  March  21,  IS 72. 

§3308.  BREACH  OF  AGREEMENT  TO  SELL  PER- 
SONAL   PROPERTY,   NOT    PAID    FOR.     The    detriment 

1002 


Tit.II.ch.II.art.l.J     BREACH  OF  AGREEMENT.  §§3309-3311 

caused  by  the  breach  of  a  seller's  agreement  to  deliver  per- 
sonal property,  the  price  of  which  has  not  been  fully  paid  in 
advance,  is  deemed  to  be  the  excess,  if  any,  of  the  value  of 
the  property  to  the  buyer,  over  the  amount  which  would 
have  been  due  to  the  seller  under  the  contract,  if  it  had  been 
fulfilled. 

History:     Enacted  March  L'l,  1872. 

§  3309.  BREACH  OF  AGREEMENT  TO  SELL  PER- 
SONAL PROPERTY  PAID  FOR.  The  detriment  caused 
by  the  Iireach  of  a  seller's  agreement  to  deliver  personal 
property,  the  price  of  which  has  been  fully  paid  to  him  in 
advance,  is  deemed  to  lie  the  same  as  in  case  of  wron.t^ful 
conversion. 

IliNtory:     lOnacted  March  2^ ,  1S72. 

§3310.  BREACH  OF  AGREEMENT  TO  PAY  FOR 
PERSONAL  PROPERTY  SOLD.  The  detriment  caused 
by  the  breach  of  a  buyer's  agreement  to  accept  and  pay  for 
personal  property,  the  title  to  which  is  vested  in  him,  is 
deemed   to   be   the   contract   price. 

History:     Enacted  March  21,  1872. 

§3311.  BREACH  OF  AGREEMENT  TO  BUY  PER- 
SONAL PROPERTY.  The  detriment  caused  by  the  breach 
of  a  buyer's  agreement  to  accept  and  pay  for  personal  prop- 
erty, the  title  to  which  is  not  vested  in  him,  is  deemed 
to   be : 

1.  If  the  property  has  been  resold,  pursuant  to  section 
three  thousand  and  forty-nine,  the  excess,  if  any,  of  the 
amount  due  from  the  buyer,  under  the  contract,  over  the  net 
proceeds  of  the  resale;  or, 

2.  If  the  property  has  not  been  resold  in  the  manner  pre- 
scribed by  section  three  thousand  and  forty-nine,  the  excess, 
if  any,   of   the   amount   due    from   the   buyer,   under   the   con- 

1003 


§§3312-3315  CIVIL  code.  [Div.IV.Pt.I. 

tract,  over  the  value  to  the  seller,  together  with  the  ex- 
cess, if  any,  of  the  expenses  properly  incurred  in  carrying 
the  property  to  market,  over  those  which  would  have  been 
incurred  for  the  carriage  thereof,  if  the  buyer  had  accepted  it. 

History:     Enacted  March  21,  1872. 

§3312.  BREACH  OF  WARRANTY  OF  TITLE  TO 
PERSONAL  PROPERTY.  The  detriment  caused  by  the 
breach  of  a  warranty  of  the  title  of  personal  property  sold, 
is  deemed  to  be  the  value  thereof  to  the  buyer,  when  he  is 
deprived  of  its  possession,  together  with  any  costs  which  he 
has  become  liable  to  pay  in  an  action  brought  for  the  prop- 
erty by  the  true  owner. 

History:     Enacted  March  21,  1872. 

§3313.  BREACH  OF  WARRANTY  OF  QUALITY  OF 
PERSONAL  PROPERTY.  The  detriment  caused  by  the 
breach  of  a  warranty  of  the  quality  of  personal  property  is' 
deemed  to  be  the  excess,  if  any,  of  the  value  which  the  prop- 
erty would  have  had  at  the  time  to  which  the  warranty  re- 
ferred, if  it  had  been  complied  with,  over  its  actual  value 
at  that  time. 

History:     Enacted  March  21,  1S72. 

§  3314.  BREACH  OF  WARRANTY  OF  QUALITY  FOR 
SPECIAL  PURPOSE.  The  detriment  caused  by  the  breach 
of  a  warranty  of  the  fitness  of  an  article  of  personal  prop- 
erty for  a  particular  purpose,  is  deemed  to  be  that  which  is 
defined  by  the  last  section,  together  with  a  fair  compensation 
for  the  loss  incurred  by  an  effort  in  good  faith  to  use  it  for 
such  purpose. 

History:     Enacted  March  21,  1S72. 

§3315.  BREACH  OF  CARRIER'S  OBLIGATION  TO 
RECEIVE    GOODS,    ETC.     The    detriment    caused    by    the 

1004 


Tit.II.ch.II.art.l.]       CARRIER'S   BREACH.  §§3316-3318 

breach  of  a  carrier's  obligation  to  accept  freight,  messages, 
or  passengers,  is  deemed  to  be  the  difference  between  the 
amount  which  he  had  a  right  to  charge  for  the  carriage  and 
the  amount  which  it  would  be  necessary  to  pay  for  the  same 
service  when  it  ought  to  be  performed. 

Hi-story:     Enacted  March  21,  1872. 

§3316.  BREACH  OF  CARRIER'S  OBLIGATION  TO 
DELIVER.  The  detriment  caused  by  the  l)reach  of  a  car- 
rier's obligation  to  deliver  freight,  where  he  has  not  con- 
verted it  to  his  own  use,  is  deemed  to  be  the  value  thereof 
at  the  place  and  on  the  day  at  which  it  should  have  been  de- 
livered, deducting  the  freightage  to  which  he  would  have 
l)een   entitled  if  he  had  completed  the  delivery. 

History:     Enacted  March  21,  1S72. 

§3317.  CARRIER'S  DELAY.  The  detriment  caused  by 
a  carrier's  delay  in  the  delivery  of  freight,  is  deemed  to  be 
the  depreciation  in  the  intrinsic  value  of  the  freight  during 
the  delay,  and  also  the  depreciation,  if  any,  in  the  market 
value  thereof,  otherwise  than  by  reason  of  a  depreciation  in 
its  intrinsic  value,  at  the  place  where  it  ought  to  have  been 
delivered,  and  between  the  day  at  vvliich  it  ought  to  have 
been  delivered,  and  the  day  of  its  actual  delivery. 

History:     Enacted  March  21,  1ST2. 

§3318.     BREACH   OF  WARRANTY   OF  AUTHORITY. 

The  detriment  caused  by  the  breach  of  a  warranty  of  an 
agent's  authority,  is  deemed  to  be  the  amount  which  could 
have  been  recovered  and  collected  from  his  principal  if  the 
warranty  had  been  complied  with,  and  the  reasonable  ex- 
penses of  legal  proceedings  taken,  in  good  faith,  to  enforce 
the   act   of   the   agent   against   his   principal. 

History:     Enacted  March  21,  1872. 

1005 


§.3319  CIVIL    CODE.  [Div.IV.Pl.I. 

§3319.     BREACH  OF  PROMISE  OF  MARRIAGE.     The 

damages  for  the  breach  of  a  promise  of  marriage  rest  in  the 
sound  discretion  of  the  jury. 

History:     Enacted  March  21,  1872. 


1006 


Tit.ll.ch.lI.art.ll.J     WHONG.S,   DAMAGES.  §§3333,3334 


ARTICLE  II. 

DAMAGES  FOR  WRONGS. 

§  3333.  Breach   of  obligation  other  than  contract. 

§  3334.  Wrongful  occupation  of  real  property. 

§  3335.  Wilful   holding  over. 

§  3336.  Conversion  of  personal  property. 

§  3337.  Same.      [Application  to  benefit  of  owner.] 

§  3338.  Damages   of   lienor. 

§  3339.  Seduction. 

§  3340.  Injuries  to  animals. 

§  3341.  Same.      [Sheep-killing  dogs.] 


§3333.  BREACH  OF  OBLIGATION  OTHER  THAN 
CONTRACT.  For  the  breach  of  an  obligation  not  arising 
from  contract,  the  measure  of  damages,  except  where  other- 
wise expressly  provided  by  this  code,  is  the  amount  which 
will  compensate  for  all  the  detriment  proximately  caused 
thereby,  whether  it  could  have   been   anticipated  or  not. 

History:     Enacted  March  Jl,   ISll 

§  3334.  WRONGFUL  OCCUPATION  OF  REAL  PROP- 
ERTY. The  detriment  caused  by  the  wrongful  occupation 
of  real  property,  in  cases  not  embraced  in  sections  thirty- 
three  hundred  and  thirty-five,  thirty-three  hundred  and  forty- 
four,  and  thirty-three  hundred  and  forty-five  of  tliis  code, 
or  section  eleven  hundred  and  seventy-four  of  the  code  of 
civil  procedure,  is  deemed  to  be  the  value  of  the  use  of  the 
property  for  the  time  of  such  occupation,  not  exceeding  five 
years  next  preceding  the  commencement  of  the  action  or 
proceeding  to  enforce  the  right  to  damages,  and  the  costs, 
if  any,  of  recovering  the   possession. 

*  History:     Enacted  March  21,  1S72 

1007 


§§3335-3338  civil  code.  lDiv.lV,Pt.I. 

§3335.  WILFUL  HOLDING  OVER.  For  wilfully  hold- 
ing over  real  property,  by  a  person  who  entered  upon  the 
same,  as  guardian  or  trustee  for  an  infant,  or  by  right  of  an 
estate  terminable  with  any  life  or  lives,  after  the  termination 
of  the  trust  or  particular  estate,  without  the  consent  of  the 
party  immediately  entitled  after  such  termination,  the  meas- 
ure of  damages  is  the  value  of  the  profits  received  during 
such  holding  over. 

History:     Enacted  March  21,  1S72 

§3336.  CONVERSION  OF  PERSONAL  PROPERTY. 

The    detriment    caused    by    the   wrongful    conversion   of   per- 
sonal property  is  presumed  to  be: 

1.  The  value  of  the  property  at  the  time  of  the  conversion, 
with  the  interest  from  that  time,  or,  where  the  action  has 
been  prosecuted  with  reasonable  diligence,  the  highest  mar- 
ket value  of  the  property  at  any  time  between  the  con- 
version and  the  verdict,  without  interest,  at  the  option  of  the 
injured   party;   and 

2.  A  fair  compensation  for  the  time  and  money  properly 
expended  in  pursuit  of  the  property. 

History:  •  Enacted  March  21,  1S72;  amended  March  30,  1S74, 
Code  Amdts.  1873-4.  p.  266;  January  22,  1878,  Code  Amdts.  1877-8, 
p.  90. 

§3337.  SAME.  [APPLICATION  TO  BENEFIT  OF 
OWNER.]  The  presumption  declared  by  the  last  section 
cannot  be  repelled,  in  favor  of  one  whose  possession  was 
wrongful  from  the  beginning,  by  his  subsequent  application 
of  the  property  to  the  benefit  of  the  owner,  without  his 
consent. 

History:     Enacted  March  21,  1872 

§3338.  DAMAGES  OF  LIENOR.  One  having  a  mere 
lien  on  personal  property,  cannot  recover  greater  damages 
for  its  conversion,  from  one  having  a  right  thereto  superior 

1008 


Tit.lI.ch.lI.art.II.l    INJURY  TO  ANIMALS.  §§3339-3341 

to  his,  after  his  lien  is  discharged,  than  the  amount  secured 
by  the  lien,  and  the  compensation  allowed  by  section  thirty- 
three  hundred  and  thirty-six  for  loss  of  time  and  expenses. 
History:     Enacted  March  21,  1872 

§  3339.  SEDUCTION.  The  damages  for  seduction  rest  in 
the  sound  discretion  of  the  jury. 

History:     Enacted  March  21,  1872 

§3340.  INJURIES  TO  ANIMALS.  For  wrongful  in- 
juries to  animals  being  subjects  of  property,  committed  wil- 
fully or  by  gross  negligence,  in  disregard  of  humanity,  ex- 
emplary   damages    may   be    given. 

History:     Enacted  March  21,  1872 

§3341.  SAME.  [SHEEP-KILLING  DOGS.]  The  own- 
er, possessor,  or  harborer  of  any  dog  or  other  animal,  that 
shall  kill,  worry,  or  wound  any  sheep,  angora  goat,  or  cash- 
mere goat,  or  poultry,  shall  be  liable  to  the  owner  of  the 
same  for  the  damages  and  costs  of  suit,  to  be  recovered  in 
any  court  of  competent  jurisdiction: 

1.  In  the  prosecution  of  actions  under  the  provisions  of 
this  chapter,  it  shall  not  be  necessary  for  the  plaintiff  to  show 
that  the  owner,  possessor,  or  harborer  of  such  dog  or  other 
animal,  had  knowledge  of  the  fact  that  such  dog  or  other 
animal  would  kill,  wound  or  worry  sheep,  goats,  or  poultry. 

2.  Any  person  on  finding  any  dog  or  dogs,  or  other  ani- 
mal, not  on  the  premises  of  the  owner  or  possessor  of  such 
dog  or  dogs,  or  other  animal,  worrying,  wounding,  or  killing 
any  sheep,  angora  or  cashmere  goats,  may,  at  the  time  of 
finding  such  dog  or  dogs,  or  other  animal,  kill  the  same,  and 
the  owner  or  owners  thereof  shall  sustain  no  action  for 
damages  against  any  person  so  killing  such  dog  or  dogs,  or 
other  animal. 

History:  Enacted  March  13,  1883,  Stats,  and  Amdts.  1883,  p. 
283;  amended  February  27,  1903,  Stats,  and  Amdts.  1903,  p.  54. 

1009 


§§3344-3346  CJVii.  cuDE.  [Div.lV,Pt.I. 


ARTICLE  111. 

PENAL    DAMAGES.      . 

§  3344.     Failure  to  quit,  after  notice. 
§  3345.     Tenant  wilfully  holding  over. 
§  3346.     Injuries  to  trees,  etc. 
§  3346a.   Damages  for  firing  woods. 
§  3347.     Injuries   inflicted   in  a  duel. 
§  3348.     Same. 

§  3344.     FAILURE  TO  QUIT,  AFTER  NOTICE.     If  any 

tenant  give  notice  of  his  intention  to  quit  the  premises,  and 
does  not  deliver  up  the  possession  at  the  time  specified  in 
tlie  notice,  he  must  pay  to  the  landlord  treble  rent  during  the 
time  he  continues  in  possession  after  such  notice. 

Historj-:     Enacted  March  21,  1872 


§3345.     TENANT    WILFULLY    HOLDING    OVER.     If 

any  tenant,  or  any  person  in  collusion  with  the  tenant,  holds 
over  any  lands  or  tenements  after  demand  made  and  one 
month's  notice,  in  writing  given,  requiring  the  possession 
thereof,  such  person  holding  over  must  pay  to  the  landlord 
treble  rent  during  the  time  he  continues  in  possession  after 
such  notice. 

History:     Enacted  March  21,  1872 

§  3346.  INJURIES  TO  TREES,  ETC.  For  wrongful  in- 
juries to  timber,  trees,  or  underwood  upon  the  land  of  an- 
other, or  removal  thereof,  the  measure  of  damages  is  three 
times  such  a  sum  as  would  compensate  for  the  actual  detri- 
ment, except  where  the  trespass  was  casual  and  involuntary, 
or  committed  under  the  belief  that  the  land  belonged  to  the 
trespasser,  or  where  the  wood  was   taken  by   the  authority 

1010 


Tit.TI,ch.II,art.TIT.l       FIRING  WOODS.  §§  3346a-3348 

of  highway  officers  for  the  purposes  of  a  highway;   in  which 
cases  the  damages  are  a  sum  equal  to  the  actual  detriment. 

History:     Enacted  March  21,  1S72 

§  3346a.  DAMAGES  FOR  FIRING  WOODS.  Every 
person  negligently  setting  fire  to  his  own  woods,  or  negli- 
gently suffering  afiy  fire  to  extend  beyond  his  own  land, 
is  liable  in  treble  damages  to  the  party  injured. 

History!  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Anidts  lyOO-I,  p.  421,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  Marcli  21,  1905^  Stats,  and  Amdts. 
1905,  p.  621,  incorporating  into  tlie  Civil  Code  the  principle  de- 
clared in  Pol.  Code  §  3344. 

§3347.  INJURIES  INFLICTED  IN  A  DUEL.  If  any 
person  slays  or  permanently  disables  another  person  in  a 
duel  in  this  state,  the  slayer  must  provide  for  the  main- 
tenance of  the  widow  or  wife  of  the  person  slain  or  per- 
manently disabled,  and  for  the  minor  children,  in  such  man- 
ner and  at  such  cost,  either  by  aggregate  compensation  in 
damages  to  each,  or  by  a  monthly,  quarterly,  or  annual  al- 
lowance,  to   be   determined  by   the   court. 

History:      Enacted  March   21,   1872,  based  on  Stats.  IS,'),'),  p.   152. 

§3348.  SAME.  If  any  person  slays  or  permanently  dis- 
ables another  person  in  a  duel  in  this  state,  the  slaj-cr  is 
liable  for  and  must  pay  all  debts  of  the  person  slain  or  per- 
manently disabled. 

History:     Enacted  March  21,  1872 


1011 


§§3353.3354  civil  code.  [Div.IV,Pt.l. 


ARTICLE  IV. 

GENERAL  PROVISIONS. 

§  3353.  Value,  how  estimated  in  favor  of  seller. 

§  3354.  Value,  how  estimated  in  favor  of  buyer. 

§  3355.  Property  of  peculiar  value. 

§  3356.  Value  of  thing  in  action. 

§  3357.  Damages    allowed    in    this   chapter,    exclusive    of    others. 

§  3358.  Limitation   of  damages. 

§  3359.  Damages  to  be  reasonable. 

§  3360.  Nominal  damages. 

§3353.  VALUE,  HOW  ESTIMATED  IN  FAVOR  OF 
SELLER.  In  estimating  damages,  the  value  of  property  to 
a  seller  thereof  is  deemed  to  be  the  price  which  he  could 
have  obtained  therefor  in  the  market  nearest  to  the  place  at 
which  it  should  have  been  accepted  by  the  buyer,  and  at 
such  time  after  the  breach  of  the  contract  as  would  have 
sufficed,  with  reasonable  diligence,  for  the  seller  to  efifect  a. 
resale. 

History:     Enacted  March  21,  1872 

§3354.  VALUE,  HOW  ESTIMATED  IN  FAVOR  OF 
BUYER.  In  estimating  damages,  except  as  provided  by  sec- 
tions thirty-three  hundred  and  fifty-five  and  thirty-three 
hundred  and  fifty-six,  the  value  of  property,  to  a  buyer  or 
owner  thereof,  deprived  of  its  possession,  is  deemed  to  be 
the  price  at  which  he  might  have  bought  an  equivalent  thing 
in  the  market  nearest  to  the  place  where  the  property  ought 
to  have  been  put  into  his  possession,  and  at  such  time  after 
the  breach  of  duty  upon  which  his  right  to  damages  is  found- 
ed as  would  suffice,  with  reasonable  diligence,  for  him  to 
make  such  a  purchase. 

History:     Enacted  March  21,  1872 

1012 


Tit.n,ch.TI,art.IV.]     VALUE   OF   THING.  §§3355-3359 

§3355.  PROPERTY  OF  PECULIAR  VALUE.  Where 
certain  property  has  a  pecuHar  value  to  a  person  recovering 
damages  for  deprivation  thereof,  or  injury  thereto,  that  may 
be  deemed  to  be  its  value  against  one  who  had  notice  there- 
of before  incurring  a  liability  to  damages  in  respect  thereof, 
or  against  a  wilful  wrong-doer. 

History:     Enacted  March  21,  1872 


§3356.  VALUE  OF  THING  IN  ACTION.  For  the  pur- 
pose of  estimating  damages,  the  value  of  an  instrument  in 
writing  is  presumed  to  be  equal  to  that  of  the  property  to 
which  it  entitles  its  owner. 

Hi.story:  Enacted  March  21,  1872;  amended  April  30,  1874, 
Code  Amdts.   1873-4,  p.   266. 


§3357.  DAMAGES  ALLOWED  IN  THIS  CHAPTER, 
EXCLUSIVE  OF  OTHERS.  The  damages  prescribed  by 
this  chapter  are  exclusive  of  exemplary  damages  and  in- 
terest, except  where  those  are  expressly  mentioned. 

HLstory:     Enacted  March  21,  1872 

§3358.  LIMITATION  OF  DAMAGES.  Notwithstand- 
ing the  provisions  of  this  chapter,  no  person  can  recover  a 
greater  amount  in  damages  for  the  breach  of  an  obligation 
than  he  could  have  gained  by  the  full  performance  thereof 
on  both  sides,  except  in  the  cases  specified  in  the  articles  on 
exemplary  damages  and  penal  damages,  and  in  sections 
thirty-three  hundred  and  nineteen,  thirty-three  hundred  and 
thirty-nine,  and  thirty-three  hundred  and  forty. 

History:     Enacted  March  21,  1872 

§3359.  DAMAGES  TO  BE  REASONABLE.  Damages 
must,    in    all   cases,   be    reasonal)le,   and    where    an    ol)ligation 

1013 


§3360  ^  CIVIL  CODE.  [Div.IV.Pt.T. 

of  any  kind  appears  to  create  a  right  to  unconscionable  and 
grossly  oppressive  damages,  contrary  to  substantial  justice, 
no  more  than  reasonable  damages  can  be  recovered. 

History:     Enacted  March  21,  1872 

§3360.  NOMINAL  DAMAGES.  When  a  breach  of  duty 
has  caused  no  appreciable  detriment  to  the  party  affected, 
he    may  yet   recover   nominal   damages. 

History:     Enacted  March  21,  1872 


1014 


Tit.lIl.ch.l.J  PREVENTIVE  RELIKF.  §§3366,3367 


TITLE  III. 

SPECIFIC  AND  PREVENTIVE  RELIEF. 

Chapter  I.     General   Principles,   §§  3366-3369. 
II.     Specific  Relief,  §§3375-3415. 
III.     Preventive   Relief,  §§3420-3423. 


CHAPTER  I. 

GENERAL   PRINCIPLES. 

§  33(i6.  Specific   relief,   etc.,   when   allowed. 

§  3367.  Specific  relief,  how^  given. 

§  336S.  Preventive  relief,  how  given. 

§  33fi9.  Not  to  enforce  penalty,  etc. 


§3366.     SPECIFIC  RELIEF,  ETC.,  WHEN  ALLOWED. 

Specific  or  i^reventive  relief  may  be  given  as  provided  by  the 
laws   of   this   state. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  421,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  622,  enlarging  the 
scope  of  the  section. 


§  3367.     SPECIFIC  RELIEF,  HOW  GIVEN.     Specific  re- 
lief  is   given: 

1.  By  taking  possession  of  a   thing,  and  delivering  it  to  a 
claimant; 

2.  By  compelling  a  party  himself  to   do   that  which   ought 
to  be  done;  or, 

1015 


§§3368,3369  civil  code.  |  Div.I  V.Pt.I. 

3.  By  declaring  '  and  determining  the  rights  of  parties, 
otherwise  than  by  an  award  of  damages. 

Hi.story:     Enacted  March  21,  1872 

§3368.  PREVENTIVE  RELIEF,  HOW  GIVEN.  Pre- 
ventive relief  is  given  by  prohibiting  a  party  from  doing 
that  which  ought  not  to  be  done. 

History:     Enacted  March  21,  1872 

§3369.  NOT  TO  ENFORCE  PENALTY,  ETC.  Neither 
specific  nor  preventive  relief  can  be  granted  to  enforce  a 
penal  law,  except  in  a  case  of  nuisance,  nor  to  enforce  a 
penalty  or  forfeiture  in  any  case. 

History:     Enacted  March  21,  1872 


1016 


Tit.IlI.ch.lI.ai-t.I.l       SPECIFIC    RELIEF.  §3375 

CHAPTER  II. 

SPECIFIC  RELIEF. 

Article  I.  Possession  of  Real  Property,  §  3375. 

II.  Possession  of  Personal  Property,  §§  3379,  3380. 

III.  Specific  Performance  of  Obligations,  §§  3384-3395. 

IV.  Revision  of  Contracts,  §§    3399-3402. 
V.  Recission  of  Contracts,  §§  3406-3408. 

\T.     Cancelation  of  Instruments,  §§  3412-3415. 


ARTICLE  I. 

POSSESSION  OF  REAL,  PROPERTY. 

§  3375.     .Judgment  for  possession  or  title. 

§3375.     JUDGMENT    FOR    POSSESSION    OR   TITLE. 

A  person  entitled  to  specific  real  property,  by  reason  either 
of  a  perfected  title,  or  of  a  claim  to  title  which  ought  to  be 
perfected,  may  recover  the  same  in  the  manner  prescribed 
by  the  code  of  civil  procedure,  either  by  a  judgment  for  its 
possession,  to  be  executed  by  the  sheriff,  or  by  a  judgment 
requiring  the  other  party  to  perfect  the  title,  and  to  deliver 
possession   of   the   property. 

History:     Enacted  March  21,  1872. 


1017 


§§3379,3380  civil  code.  [Div.IV.Pt.I. 


ARTICLE  II. 

POSSESSION  OF  PERSONAL  PROPERTY. 

§  .3.j79.     Judgment  for  delivery. 

§  33S0.     When  holder  may  be  compelled  to  deliver. 

§3379.  JUDGMENT  FOR  DELIVERY.  A  person  en- 
titled to  the  immediate  possession  of  specific  personal  prop- 
erty may  recover  the  same  in  the  manner  provided  by  the 
code  of  civil  procedure. 

History:     Lnacied  March  21,   1872. 

§3380.     WHEN  HOLDER  MAY  BE  COMPELLED  TO 

DELIVER.  Any  person  having  the  possession  or  control  of 
a  particular  article  of  personal  property,  of  which  he  is  not 
the  owner,  may  be  compelled  specifically  to  deliver  it  to  the 
person  entitled  to  its  immediate  possession. 

History:  Enacted  March  21,  1872;  amended  March  30,  187-1, 
Code  Amdts.   1873-4,  p.   266. 


ARTICLE   III. 
SPECIFIC   PERFORMANCE   OF  OBLIGATIONS. 

§  3384.     In  what  cases  compelled. 

§  3385.     Remedy   mutual    [repealed]. 

§  3386.     No  remedy  unless  mutual. 

§  3387.     Distinction   between   real  and  personal   property. 

§  3388.  Contract  signed  by  one  party  only,  may  be  enforced  by 
other. 

§  3389.  Liquidation  of  damages  not  a  bar  to  specific  perform- 
ance. 

§  3390.     What  cannot  be  specifically  enforced. 

§  3391.     What  parti'es   cannot   be   compelled   to  perform. 

1018 


Tit.lir,ch.n,art.lIT.]       WHEN  COMPELLED.  §§3384-3387 

§  3392.  What  parties  cannot  have  specific  performance  in  their 
favor. 

§  3393.  Specific  performance  not  required  vi^hen  oppressive  [re- 
pealed]. 

§  3394.     Agreement   to   sell  property  by   one  who   has  no  title. 

§  3395.  Relief  against  parties  claiming  under  person  bound 
to  perform. 


§3384.  IN  WHAT  CASES  COMPELLED.  Except  as 
otherwise  provided  in  this  article,  the  specific  performance 
of  an  obligation  may  be  compelled. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code  Amdts.  1873-4,  p.  266. 


§3385.     REMEDY   MUTUAL    [repealed]. 

Hi'.story;      Enacted    March    21,    1872;    repealed    March    30,    1874, 
Code  Amdts.   1873-4,  p.   267. 


§3386.  NO  REMEDY  UNLESS  MUTUAL.  Neither 
party  to  an  obligation  can  be  compelled  specifically  to  per- 
form it,  unless  the  other  party  thereto  has  performed,  or  is 
compellable  specifically  to  perform,  everything  to  which  the 
former  is  entitled  under  the  same  obligation,  either  com- 
pletely or  nearly  so,  together  with  full  compensation  for  any 
want  of  entire  performance. 

History:     Enacted  March  21,  1872. 

§3387.  DISTINCTION  BETWEEN  REAL  AND  PER- 
SONAL PROPERTY.  It  is  to  be  presumed  that  the  breach 
of  an  agreement  to  transfer  real  property  cannot  be  ade- 
([uately  relieved  by  pecuniary  compensation,  and  that  the 
breach  of  an  agreement  to  transfer  personal  property  can  i)e 
thus   relieved. 

History:     Enacted  March  21,  1872. 

1019 


§§3389-3391  civil  code.  [Div.lV,Pt.I. 

§3388.  CONTRACT  SIGNED  BY  ONE  PARTY  ONLY, 
MAY  BE  ENFORCED  BY  OTHER.  A  party  who  has 
signed  a  written  contract  may  be  compelled  specifically  to 
perform  it,  though  the  other  party  has  not  signed  it,  if  the 
latter  has  performed,  or  oflfers  to  perform  it  on  his  part,  and 
the  case  is  otherwise  proper  for  enforcing  specific  perform- 
ance. 

History:     Enacted  March  21,  1872 

§3389.  LIQUIDATION  OF  DAMAGES  NOT  A  BAR 
TO  SPECIFIC  PERFORMANCE.  A  contract  otherwise 
proper  to  be  specifically  enforced,  may  be  thus  enforced, 
though  a  penalty  is  imposed,  or  the  damages  are  liquidated 
for  its  breach,  and  the  party  in  default  is  willing  to  pay  the 
same. 

lliNtory:     Enacted  March  21,  1872 

§3390.  WHAT  CANNOT  BE  SPECIFICALLY  EN- 
FORCED. The  following  obligations  cannot  be  specifically 
enforced: 

1.  An  obligation  to   render  personal  service; 

2.  An  obligation  to  employ  another  in  personal  service; 

3.  An  agreement  to  submit  a  controversy  to  arbitration; 

4.  An  agreement  to  perform  an  act  which  the  party  has 
not  power  lawfully  to  perform  when  required  to  do  so; 

5.  An  agreement  to  procure  the  act  or  consent  of  the  wife 
of  the  contracting  party,  or  of  any  other  third  person;  or, 

6.  An  agreement,  the  terms  of  which  are  not  sufficiently 
certain  to  make  the  precise  act  which  is  to  be  done  clearly 
ascertainable. 

HLstory:     Enacted  March  21,  1S72 

§3391.  WHAT  PARTIES  CANNOT  BE  COMPELLED 
TO  PERFORM.  Specific  performance  cannot  be  enforced 
against  a  party  to  a  contract  in  any  of  the  following  cases: 

1020 


Tit.III.ch.II.art.III.]      WHO  NOT  GRANTED.         §§  3392-3394 

1.  If  he  has  not  received  an  adequate  consideration  for  the 
contract; 

2.  If  it  is  not,  as  to  him,  just  and  reasonable; 

3.  If  his  assent  was  obtained  by  the  misrepresentation,  con- 
ceahiient,  circumvention,  or  unfair  practices  of  any  party  to 
whom  performance  would  become  due  under  the  contract, 
or  by  any  promise  of  such  party  which  has  not  been  sub- 
stantially fulfilled;  or, 

4.  If  his  assent  was  given  under  the  influence  of  mistake, 
misapprehension,  or  surprise,  except  that  where  the  contract 
provides  for  compensation  in>  case  of  mistake,  a  mistake 
within  the  scope  of  such  provision  may  be  compensated  for, 
and  the  contract  specifically  enforced  in  other  respects,  if 
proper  to  be  so  enforced. 

History:     Enacted  March  21,  1872. 

§3392.  WHAT  PARTIES  CANNOT  HAVE  SPECIFIC 
PERFORMANCE  IN  THEIR  FAVOR.  Specific  perform- 
ance cannot  be  enforced  in  favor  of  a  party  who  has  not 
fully  and  fairly  performed  all  the  conditions  precedent  on  his 
part  to  the  obligation  of  the  other  party,  except  where  his 
failure  to  perform  is  only  partial,  and  either  entirely  im- 
material, or  capable  of  being  fully  compensated,  in  which 
case  specific  performance  may  be  compelled,  upon  full  com- 
pensation being  made  for  the  default. 

History:     Enacted  March  21,  1872. 

§3393.  SPECIFIC  PERFORMANCE  NOT  REQUIRED 
WHEN  OPPRESSIVE   [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.  ]87.'?-4,  p.   267. 

§3394.  AGREEMENT  TO  SELL  PROPERTY  BY  ONE 
WHO    HAS    NO    TITLE.     An    agreement    for    the    sale    of 

1021 


§3395  CIVIL  CODE.  [Div.IV.Pt.I. 

property  cannot  be  specifically  enforced  in  favor  of  a  seller 
who  cannot  give  to  the  buyer  a  title  free  from  reasonable 
doubt. 

lli.>,tory:     Enacted  March  21,  1872. 

§  3395.  RELIEF  AGAINST  PARTIES  CLAIMING  UN- 
DER PERSON  BOUND  TO  PERFORM.  Whenever  an 
obligation  in  respect  to  real  property  would  be  specifically 
enforced  against  a  particular  person,  it  may  be  in  like  man- 
ner enforced  against  any  other  person  claiming  under  him 
by  a  title  created  subsequently  to  the  obligation,  except  a 
purchaser  or  encumbrancer  in  good  faith  and  for  value,  and 
except,  also,  that  any  such  person  may  exonerate  himself  by 
conveying  all  his  estate  to  the  person  entitled  to  enforce 
the   obligation. 

Histor.v:     Enacted  March  21,  1872. 


1022 


Tit.III,ch.TI.art.IV.]  REVISION.  §§3399-3401 


ARTICLE  IV. 

REVISION  OF  CONTRACTS. 

.3399.     When   contract  may   be  revised. 

3400.  Presumption  as  to  intent  of  parties. 

3401.  Principles  of  revision. 

34  02.      Enforcement  of  revised  contract. 


§3399.     WHEN     CONTRACT     MAY     BE     REVISED. 

When,  tlirough  fraud  or  a  mutual  mistake  of  the  parties,  or  a 
mistake  of  one  party,  which  the  other  at  the  time  knew  or 
suspected,  a  written  contract  does  not  truly  express  the  in- 
tention of  the  parties,  it  inay  be  revised  on  the  application 
of  a  party  aggrieved,  so  as  to  express  that  intention,  so  far 
as  it  can  be  done  without  prejudice  to  rights  acqttired  by 
third  persons,  in  good  faith  and  for  value. 

Hi.story:     Enacted  March  21,  1872. 


§3400.  PRESUMPTION  AS  TO  INTENT  OF  PAR- 
TIES. For  the  purpose  of  revising  a  contract,  it  must  be 
presumed  that  all  the  parties  thereto  intended  to  make  an 
equitable  and  conscientious  agreement. 

lIi.stor>  :      Enacted  xVIarch  21,  1872. 


§3401.  PRINCIPLES  OF  REVISION.  In  revising  a 
written  instrument,  the  court  may  inquire  what  the  instru- 
ment was  intended  to  mean,  and  what  were  intended  to  be 
its  legal  consequences,  and  is  not  confined  to  the  inquiry 
what   the  language  of  the  instrument  was  intended  to  be. 

History:     Enacted  March  21,  1872.        ^ 
1023 


§3402  CIVIL  CODE.  [Div.TV.I't.I. 

§3402.     ENFORCEMENT    OF   REVISED    CONTRACT. 

A    contract    may    be    first    revised   and    then    specifically    en- 
forced. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  422,  held 
unconstitutional,  see  history,   §  4  ante. 


1024 


Tit.IIT.ch.lI.art.V.]  RECISSION.  §§3406-3408 


ARTICLE  V. 

RESCISSION  OF   CONTRACTS. 

§  3406.     When   rescission  may  be  adjudged. 

§  3407.      Rescission   for   mistake. 

§  3408.      Court  may  require  party  rescinding  to  do  equity. 

§3406.     WHEN    RESCISSION    MAY    BE    ADJUDGED. 

The  rescission  of  a  written  contract  may  be  adjudged,  on  the 
application  of  a  party  aggrieved: 

1.  In  any  of  the  cases  mentioned  in  section  sixteen  hun- 
dred and  eighty-nine;  or, 

2.  Where  the  contract  is  unlawful,  for  causes  not  appar- 
ent upon  its  face,  and  the  parties  were  not  equally  in  fault;  or, 

3.  When  the  public  interest  will  be  prejudiced  by  permit- 
ting it  to  stand. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  422,  held 
unconstitutional,   see   history,    §  4  ante. 

§3407.  RESCISSION  FOR  MISTAKE.  Rescission  can- 
not be  adjudged  for  mere  mistake,  unless  the  party  against 
whom  it  is  adjudged  can  be  restored  to  substantially  the 
same  position  as  if  the  contract  had  not  been  made. 

History:      Enacted  Marcli   21.    1^72. 

§3408.  COURT  MAY  REQUIRE  PARTY  RESCIND- 
ING TO  DO  EQUITY.  On  adjudging  the  rescission  of  a 
contract,  the  court  may  require  the  party  to  whom  such  re- 
lief is  granted  to  make  any  compensation  to  the  other  which 
justice   may   require. 

History:      Enacted  March  21,  1S72. 


1025 


§§3412-3415  rn-u.  code.  [Div.IV.Pt.I. 


ARTICLE  VI. 

CANCELATION    OP    INSTRUMENTS. 

§  3412.     When   cancelation   may   be   ordered. 
§  3413.     Instrument    obviously    void. 
§  3414.     Cancelation   in  part. 

§  3415.     Re-issuance,     etc.,     of    lost    private     documents     or     in- 
struments. 

§3412.     WHEN  CANCELATION  MAY  BE  ORDEREID. 

A  written  instrument,  in  respect  to  which  there  is  a  reason- 
able apprehension  that  if  left  outstanding  it  may  cause  seri- 
ous injury  to  a  person  against  whom  it  is  void  or  voidable, 
may,  upon  his  application,  be  so  adjudged,  and  ordered  to 
be  delivered  up   or  canceled. 

History:  Enacted  March  21,  1S72;  amended  by  Code  Commis- 
sion, Act  March  6,  1901,  Stats,  and  Amdts.  1900-1,  p.  422,  held 
unconstitutional,  see  history,   §  4  ante. 

§3413.  INSTRUMENT  OBVIOUSLY  VOID.  An  in- 
strument, the  invalidity  of  which  is  apparent  upon  its  face, 
or  upon  the  face  of  another  instrument  which  is  necessary 
to  the  use  of  the  former  in  evidence,  is  not  to  be  deemed  ca- 
pable of  causing  injury,  within  the  provisions  of  the  last 
section. 

History:      Enacted  March  21,  1S72. 

§3414.  CANCELATION  IN  PART.  Where  an  instru- 
ment is  evidence  of  different  rights  or  obligations,  it  may  be 
canceled  in  part,  and  allowed   to   stand   for  the   residue. 

Histiirj  :      Enacted  March  2J,  1872. 

§3415.  RE-ISSUANCE,  ETC.,  OF  LOST  PRIVATE 
DOCUMENTS    OR   INSTRUMENTS.     An    action    may    be 

1026 


Tit.III,ch.n,art.VI.]       LOST    DOCUMEXTS,    ETC.  §3415 

maintained  by  any  person  interested  in  any  private  document 
or  instrument  in  writing,  which  has  been  lost,  destroyed  or 
damaged  by  conflagration  or  other  public  calamity,  to  prove, 
establish,  compel  the  re-issuance,  re-execution,  and  re-ac- 
knowledgment of  such  document  or  instrument.  If  such 
document  or  instrument  be  a  negotiable  instrument,  the 
court  must  compel  the  person  in  whose  favor  it  is  drawn  to 
give  a  l)ond  executed  by  himself  and  two  sufficient  sureties 
to  indemnify  the  person  re-issuing,  re-executing,'  or  re-ac- 
knowledging the  same  against  any  lawful  claim  thereon. 

Hislorj  :  Enacted  June  IS.  1906,  Stats,  and  Amdts.  extraor- 
dinar>-  session  1906,  p.  86,  Kerr's  Stats,  and  Amdts.  1906-1,  p. 
4 -'9.      Ill  elVect   immediately. 


1027 


§§3420-3423  CIVIL  code.  [Div.IV,Pt.I. 


CHAPTER  III. 

PRltVENTlVE    RELIEF. 

§  3420.  Preventive  relief,  how  gi anted. 

§  3421.  Provisional  injunctions. 

§  3422.  Injunction,    when   allowed. 

§  3423.  Injunction,    when    not    allowed. 

§3420.     PREVENTIVE     RELIEF,     HOW     GRANTED. 

Preventive    relief    is    granted    by    injunction,    provisional    or 
final. 

History:      Enacted  March    21.   1S72. 

§342L  PROVISIONAL  INJUNCTIONS.  Provisional 
injunctions  are  regulated  by  the  code  of  civil  procedure. 

Historj-:      Enacted  March   21,   1872. 

§3422.  INJUNCTION,  WHEN  ALLOWED.  Except 
where  otherwise  provided  by  this  title,  a  final  injunction  may 
be  granted  to  prevent  the  breach  of  an  obligation  existing  in 
favor  of  the  applicant: 

1.  Where  pectiniarj'  compensation  would  not  aiTord  ade- 
quate  relief; 

2.  Where  it  would  be  extremely  difticult  to  ascertain  the 
amount  of  compensation  which  would  afiford  adequate  relief; 

3.  \Vhere  the  restraint  is  necessary  to  prevent  a  niulti- 
plicit}'  of  judicial  proceedings;  or, 

4.  Where  the  obligation  arises  from  a  trust. 

History:     Enacted  March   21,   1872. 

§3423.     INJUNCTION,   WHEN    NOT    ALLOWED.     An 

injtmction  cannot  be   granted: 

1.  To  stay  a  judicial  proceeding  pending  at  the  commence- 

1028 


Tit.lll.ch.lll.l  INJUNCTION    WHKN.  §3423 

merit  of  the  action  in  which  the  mjunction  is  demanded,  un- 
less sucTi  restraint  is  necessary  to  prevent  a  multipHcitv  of 
such   proceedings. 

2.  To  stay  proceedings  in  a  court  of  the  United  States. 

3.  To   stay  proceedings  in  another  state   upon  a  judgment 
of  a  court  of  that  state. 

4.  To  prevent  the  execution  of  a  pubHc  statute,  by  officers 
of  the   law,  for  the  public  benefit. 

5.  To  prevent  the  breach  of  a  contract,  the  performance  of 
which  would  not  be  specifically  enforced. 

6.  To  prevent  the  exercise  of  a  public  or  private  office,  in 
a  lawful  manner,  by   the   person   in  possession. 

7.  To  prevent  a  legislative  act  by  a  municipal  corporation. 

History:     Enacted    March    21,    1S72;    amended    March    30,    1874, 
Code  Amdts.    1873-4,   p.   267. 


1029 


§S  3429-3431  civil  code.  [Div.IV.Pt.II. 


PART  II. 

SPECIAL   RELATIONS   OF   DEBTOR   0\ER 
■   CREDITOR. 

Ttile  I.     General  Principles,  §§  3429-3433. 

II.     Fraudulent  Instrument  and  Transfers,  §§3439-3442. 
III.     Assignments   for  the   Benefit   of   Creditors,   §§  3449- 
3473. 


TITLE  I. 

GENERAL  PRINCIPLES. 

§  3429.  Who  is  a  debtor. 

§  3430.  Who   Is   a   creditor. 

§  3431.  Contracts  of  debtor   are  valid. 

§  3432.  Payments  in  preference. 

§  3433.  Relative  rights   of  different   creditors.  ' 

§3429.  WHO  IS  A  DEBTOR.  A  debtor,  within  the 
meaning  of  this  title,  is  one  who,  by  reason  of  an  existing 
obligation,  is  or  may  become  liable  to  pay  money  to  an- 
other, whether  such  liability  is  certain  or  contingent. 

History:      Enacted  March   21,   1872. 

§3430.  WHO  IS  A  CREDITOR.  A  creditor,  within  the 
meaning  of  this  title,  is  one  in  whose  favor  an  obligation 
exists,  by  reason  of  wh-ich  he  is,  or  may  become,  entitled  to 
the  payment  of  money. 

History:      Enacted   March   21,   1872. 

§343L     CONTRACTS    OF   DEBTOR   ARE   VALID.     In 

the    absence    of    fraud,    every    contract    of    a    debtor   is    valid 

1030 


Tit. I.]  PAYMENT— RELATIVE   RIGHTS.         §§3432,3433 

against   all   his   creditors,   existing   or   subsequent,   who   have 
not  acquired  a  lien  on  the  property  affected  by  such  contract. 

History:      Enacted  March   21,   1872. 

§  3432.  PAYMENTS  IN  PREFERENCE.  A  debtor  may 
pay  one  creditor  in  preference  to  another,  or  may  give  to 
one  creditor  security  for  the  payment  of  his  demand  in  pref- 
erence  to  another. 

History:      Enacted   March   21,   1872. 

§  3433.  RELATIVE  RIGHTS  OF  DIFFERENT  CRED- 
ITORS. \\  here  a  creditor  is  entitled  to  resort  to  each  of 
several  funds  for  the  satisfaction  of  his  claim,  and  another 
person  has  an  interest  in,  or  is  entitled  as  a  creditor  to  re- 
sort to  some,  but  not  all  of  them,  the  latter  may  require  the 
former  to  seek  satisfaction  from  those  funds  to  which  the 
latter  has  no  such  claim,  so  far  as  it  can  be  done  without 
impairing  the  right  of  the  former  to  complete  satisfaction, 
and  without  doing  injustice  to  third  persons. 

History:      Enacted   Marcli   21,   1S72. 


1031 


§§3439,3440  civil  code.  [Div.TV.Pt.II. 


TITLE  II. 

FRAUDULENT    INSTRUMENTS   AND    TRANSFERS. 

§  3  439.  Transfers,   etc.,   with  intent  to   defraud  creditors. 

§  3440.  Certain   transfers  presumed  fraudulent. 

§  3441.  Creditor's  riglit  must  be  judicially  ascertained. 

§"3442.  Question   of   fraud,    how    determined. 

§  3439.  TRANSFERS,  ETC.,  WITH  INTENT  TO  DE- 
FRAUD CREDITORS.  Every  transfer  of  property  ur 
charge  thereon  made,  every  obligation  incurred,  and  every 
judicial  proceeding  taken,  with  intent  to  delay  or  defraud 
any  creditor  or  other  person  of  his  demands,  is  void  against 
all  creditors  of  the  debtor,  and  their  successors  in  interest, 
and  against  any  person  upon  whom  the  estate  of  the  debtor 
devolves  in  trust  for  the  lienefit  of  others  than  the  debtor. 

History:      Enacted  March   21,   1872. 

§3440.  CERTAIN  TRANSFERS  PRESUMED  FRAUD- 
ULENT. Every  transfer  of  personal  property,  other  than  a 
thing  in  action,  or  a  ship  or  cargo  at  sea  or  in  a  foreign  port, 
and  every  lien  thereon,  other  than  a  mortgage,  when  al- 
lowed by  law,  and  a  contract  of  bottomry  or  respondentia, 
is  conclusively  presumed,  if  made  by  a  person  having  at  the 
time  the  possession  or  control  of  the  property,  and  not  ac- 
companied by  an  immediate  delivery,  and  followed  by  an 
actual  and  continued  change  of  possession  of  the  things 
transferred,  to  be  fraudulent,  and  therefore  void,  against 
those  who  are  his  creditors  while  he  remains  in  possession, 
and  the  successors  in  interest  of  such  creditors,  and  against 
any  persons  on  whom  his  estate  devolves  in  trust  for  the 
benefit  of  others  than  himself,  and  against  purchasers  or 
encumbrancers  in  good  faith  subsequent  to  the  transfer; 

[Exception.]      Provided,    however,    that    the    provisions    of 

1032 


Tit.Il.J  PRESUMPTION    OF    FRAUD.  §3440 

this  section  shall  not  apply  to  the  transfers  of  wines  in  the 
wineries  or  wine  cellars  of  the  makers  or  owners  thereof, 
or  other  persons  having  possession,  care,  and  control  of  the 
same,  and  the  pipes,  casks,  and  tanks  in  which  the  said  wines 
are  contained,  which  transfers  shall  be  made  in  writing,  and 
certified  and  verified  in  the  same  form  as  provided  for  chat- 
tel mortgages  and  which  shall  l:»e  recorded  in  the  book  of 
miscellaneous  records  in  the  office  of  the  county  recorder 
of  the  county  in  which  the  same  are  situated; 

[Public  recordation  required.]  Provided,  also,  tliat  the 
sale,  transfer,  or  assignment  of  a  stock  in  trade  (or  of  such 
a  quantity  of  a  stock  in  trade  as  to  be  substantially  a  whole) 
in  bulk,  or  in  any  manner  otherwise  than  in  the  ordinary 
course  of  trade  and  in  the  regular  and  usual  practice  and 
method  of  business  of  the  vendor,  transferrer,  or  assignor, 
will  be  conclusively  presumed  to  be  fraudulent  and  void  as 
against  the  existing  creditors  of  the  vendor,  transferrer,  or 
assignor,  unless  at  least  five  days  before  the  consummation 
of  such  sale,  transfer,  or  assignment  the  vendor,  transferrer, 
or  assignor,  or  the  intended  vendee,  transferee,  or  assignee 
shall  record  in  the  office  of  the  county  recorder  in  the  county 
or  counties  in  which  the  said  stock  in  trade  is  situated,  a 
notice  of  said  intended  sale,  transfer,  or  assignment,  stating 
the  name  and  address  of  the  intended  vendor,  transferrer, 
or  assignor,  and  the  name  and  address  of  the  intended  ven- 
dee, transferee,  or  a«signee,  and  a  general  statement  of  the 
character  of  the  property  or  merchandise  intended  to  be 
sold,  assigned,  or  transferred,  and  the  date  when,  and  the 
place  where,  the  purchase  price,  if  any  there  be,  is  to  be 
paid ; 

[Sales  at  public  auction.]  Provided,  nevertlieless,  that  if 
such  intended  sale  is  to  be  at  public  auction  the  notice  above 
required  to  be  recorded  shall  state  that  fact,  the  time,  terms, 
and  place  of  said  sale,  the  names  and  addresses  of  tlie  ven- 
dor and  auctioneer,  and  a  general  statement  of  the  character 

1033 


SS  3^141,3442  CIVIL  CODE.  [Div.IV.Pt.Il. 

of  the  property  or  merchandise  intended  to  be  sold;  but  such 
sale  shall  in  no  event  occur  within  five  days  of  the  date  of 
recordation   of  said  notice; 

[Transfers  under  order  of  court.]  Provided  further,  that 
the  provisions  of  this  section  shall  not  apply  or  extend  to 
any  sale,  transfer  or  assignment  made  under  the  direction  or 
order  of  a  court  of  competent  jurisdiction,  or  by  any  execu- 
tor, administrator,  guardian,  receiver,  or  other  officer  or  per- 
son acting  in  the  regular  and  proper  discharge  of  official 
duty,  or  in  the  discharge  of  any  trust  imposed  upon  him  by 
law,  nor  to  any  transfer  or  assignment  made  for  the  bene- 
fit of  creditors  generally, "'nor  to  any  sale,  transfer  or  assign- 
ment  of  any  property   exempt   from   execution. 

History:  Enacted  March  21,  1872;  amended'  March  12,  1895, 
Stats,  and  Amdts.  1895,  p.  47;  March  10,  1903,  Stats,  and  Amdts. 
1903.   pp.    111-112. 

§34^41.  CREDITOR'S  RIGHT  MUST  BE  JUDICIALLY 
ASCERTAINED.  A  creditor  can  avoid  the  act  or  obliga- 
♦^^ion  of  his  debtor  for  fraud  only  where  the  fraud  obstructs 
the  enforcement,  by  legal  process,  of  his  right  to  take  the 
property  affected  by  the  transfer  or  obligation. 

History:      Enacted  March   21,   1872. 


S3442.  QUESTION  OF  FRAUD,  HOW  DETER- 
MINED. In  all  cases  arising  under  section  twelve  hundred 
and  twenty-seven,  or  under  the  provisions  of  this  title,  ex- 
cept as  otherwise  provided  in  section  thirty-four  hundred 
and  forty,  the  question  of  fraudulent  intent  is  one  of  fact 
and  not  of  law;  nor  can  any  transfer  or  charge  be  adjudged 
fraudulent  solely  on  the  ground  that  it  was  not  made  for  a 
valuable  consideration;  provided,  however,  that  any  transfer 
or   encumbrance   of  property  made  or  given   voluntarily,   or 

-       1034 


Jit  J  J]  FRAUD — DETERMINING.  §3442 

without  a  valuable  consideration,  by  a  party  while  insolvent 
or  in  contemplation  of  insolvency,  shall  be  fraudulent,  ana 
void  as  to  existing  creditors. 

History:  Enacted  March  21,  1872;  amended  March  26,  1895, 
Stats,  and  Amdts.  1895,  pp.  154-5;  amended  by  Code  Commis- 
sion, Act  March  6,  1901,  Stats,  and  Amdts.  1900-1.  p.  422,  held 
uncon.stitutional.  see  lii.story,  §  4  ante. 


1035 


§3449  CIVIL  CODE.  [Div.TV.Pt.IT. 


TITLE  III. 

ASSIGNMENTS    FOR    THE    BENEFIT    OF    CREDITORS. 

§  .3449.  "When  debtor   may   execute  assignment. 

§  3450.  Insolvency,  what. 

§  3451.  Certain    transfers    not    affected. 

§  3452.  What  debts  maj'   be  secured.  .^ 

§  3453.  Wliat  preferences  may  be  given    [repealed]. 

§  3454.  Preference   must   be   absolute    [repealed]. 

§  3455.  Certain  rights  not  affected  by  preferences  in  assign- 
ment   [repealed]. 

§J!456.  Joint  and  separate  debts    [repealed]. 

§  3457.  Assignment,   when    void. 

§  3458.  The    instrument    of   assignment. 

§  3459.  Compliance  with  provisions  of  last  section  necessary 
to   validity    of   assignment. 

§  3460.  Assignee   takes,  subject  to   rights   of   third  parties. 

§  3461.  Inventory    required. 

§  3462.  Verification  of  inventory. 

§  3463.  Recording  assignment  and   filing  inventory. 

§  3464.  Same.      More    than    one   assignor    recording   assignment. 

§  3465.  Assignment,   when   void. 

§  3466.  Assignment  of  real  property. 

§  3467.  Bond   of  assignees. 

§  3468.  Conditions    of   disposal    and   conversion. 

§  3469.  Accounting  of  assignee. 

§  3470.  Property    exempt. 

§  34  71.  Compensation. 

§  3472.  Assignees   protected  for   acts   done   in   good   faith. 

§  3473.  Assent  of  creditor  necessary  to  modification  of  assign- 
ment. 


§3449.  WHEN  DEBTOR  MAY  EXECUTE  ASSIGN- 
MENT. An  insolvent  debtor  may  in  good  faith  execute  an 
assignment  of  property  in  trust  for  the  satisfaction  of  his 
creditors,  in  conformity  to  the  provisions  of  this  chapter; 
subject,  however,  to  the  provisions  of  this  code  relative  to 
trusts  and   fraudulent  transfers,  and  to   the   restrictions  im- 

1036 


Tit.TTI.]  ASSIGNMENT— EXECUTED    WHEN.  §3449 

posed  by  law  upon  assignments  by  special  partnerships,  by 
corporations,  or  by  other  specific  classes  or  persons. 

[Form  of  assignment.]  Every  such  assignment  shall  con- 
tain a  list  of  the  names  of  the  creditors  of  the  assignor,  and 
their  places  of  residence  and  amounts  of  their  respective  de- 
mands, and  the  amounts  and  nature  of  any  security  therefor, 
and  shall,  subject  to  the  other  provisions  of  this  section,  be 
made  to  the  sheriff  of  the  county,  or  city  and  county,  where- 
in the  assignor  resides,  if  the  assignor  resides  within  this 
state;  or  in  case  the  assignor  resides  out  of  this  state,  then 
to  the  sheriff  of  the  covmty,  or  city  and  county,  wherein 
the  property  assigned,  or  some  of  it,  is  situated;  but  when 
the  assignor  resides  out  of  the  state,  an  assignment  made  as 
herein  provided  may,  by  its  terms,  transfer  any  property  of 
the  assignor  in  this  state. 

[Sheriff  to  take  possession — Notice  to  creditors.]  The 
sheriff  shall  forthwith  take  possession  of  all  the  property 
so  assigned  to  him,  and  keep  the  same  till  delivered  by  him, 
as  hereinafter  provided.  When  the  assignment  has  been 
made,  as  herein  provided,  the  sheriff  shall  imniediately,  by 
mail,  notify  the  creditors  named  in  the  assignment,  at  their 
places  of  residence  as  given  therein,  to  meet  at  his  office  on 
a  day  and  hour  to  be  appointed  by  him,  of  not  less  than  eight 
nor  more  than  ten  days  from  the  date  of  the  delivery  of  the 
assignment  to  him,  for  the  purpose  of  electing  one  or  more 
assignees,  as  they  may  determine,  in  the  place  and  stead  of 
the  said  sheriff  in  the  premises,  and  shall  also  publish  a 
notice  of  such  meeting,  and  the  purpose  thereof,  at  least 
once  before  such  meeting,  in  some  newspaper  published  in 
his  county,   or   city  and  county. 

[Notice  to  contain  demand  on  creditors.]  The  notice  so 
to  be  mailed  shall  also  contain  a  statement  of  the  amount 
of  the  demand  of  the  creditor,  and  the  amount  and  nature 
of  any  security  therefor,  as  set  forth  in  the  assignment;  and 
if  any  creditor  shall  not  find  the  amount  of  his  claim  to  be 
correctly  so  stated,  he  may  file  with  said  sheriff,  at  or  before 

1037 


§3449  CIVIL  CODE.  fDiv.IV.Pt.II. 

such  meeting,  a  statement,  under  oath,  of  his  demand,  and 
such  statement  shall,  for  the  purpose  of  voting  as  hereinafter 
provided,  be  accepted  by  said  sherifif  as  correct;  and  when 
no  such  statement  is  filed,  the  statement  of  amount  as  set 
forth  in  the  assignment  shall  be  accepted  by  the  sheriff  as 
correct.  No  creditor  having  a  mortgage  or  pledge  of  real 
or  personal  property  of  the  debtor,  or  lien  thereon,  for  se- 
curing the  payment  of  a  debt  owing  to  him  from  the  debtor, 
shall  be  allowed  to  vote  any  part  of  his  claim  at  such  meet- 
ing of  creditors,  unless  he  shall  have  first  conveyed,  released, 
or  delivered  up  his  said  security  to  said  sherifif,  for  the  bene- 
fit of  all  creditors  of  said  assignor.  At  such  meeting  the 
.sherifif  shall  preside,  and  a  majority  in  amount  of  demands 
present  or  represented  by  proxy  shall  control  all  questions 
and  decisions. 

The  creditors  may  adjourn  such  meeting  from  time  to  time, 

and  may  vote  on  all  questions  either  in  person  or  by  proxy 
signed  and  acknowledged  before  any  officer  authorized  to 
take  acknowledgments,  and  filed  with  the  sherifif.  At  such  a 
meeting,  or  any  adjournment  thereof,  the  creditors  may  elect 
one  or  more  assignees  from  their  own  number,  in  the  place 
and  stead  of  the  sherifif,  and  the  person  or  persons  so 
elected  shall  afterwards  be  the  assignee  or  assignees  under 
the  provisions  of  this  title;  and  the  sherifif,  by  transfer  in 
writing,  acknowledged  as  required  by  section  three  thousand 
four  hundred  and  fifty-eight,  shall  at  once  assign  to  such 
elected  assignee  or  assignees,  upon  the  trusts  in  this  title 
provided,  all  the  property  so  assigned  to  him,  and  deliver 
possession  thereof.  All  recitals  in  such  assignment  by  said 
sherifif  of  notices  of  such  meeting,  and  the  holding  thereof, 
and  of  the  due  election  of  such  assignee  or  assignees,  shall 
be  prima   facie  proof  of  the  facts  recited. 

[Sheriff's  fees  and  expenses.]  The  sherifif  shall,  before 
the  delivery  of  such  assignment,  be  paid  the  expenses  in- 
curred by  him,  and  fees  in  such  amount  as  would  by  law  be 
collectable  if  the  property  assigned  had    been    levied    upon 

1038 


Tit. III.]  INSOLVENCY.    WHAT    IS.  §§3450,3451 

and  safely  kept  under  attachment.  Thereupon,  and  after  the 
record  of  such  last-named  assignment,  as  in  this  title  pro- 
vided, such  elected  assignee  or  assignees  shall  take,  and  hold, 
and  dispose  of  all  such  property  and  its  proceeds,  upon  the 
trusts  and  conditions  and  for  the  purposes  in  this  title  pro- 
vided. 

History:  Enacted  March  21,  1S72;  amended  March  7,  1,SS9, 
Stats,  and  Amdts.  18S9,  pp.  80-2;  March  26,  189.5,  Stats,  and 
Amdts.   1895,  pp.  82-4. 


§3450.  INSOLVENCY,  WHAT.  A  debtor  is  insolvent, 
within  the  meaning  of  this  title,  when  he  is  unable  to  pay  his 
debts  from  his  own  means,  as  they  become  due. 

Hi.st<(ry:      Enacted  March   21,    1872. 


§3451.     CERTAIN     TRANSFERS     NOT     AFFECTED. 

The  provisions  of  this  title  do  not  prevent  a  person  residing 
in  another  state  or  country  from  making  there,  in  good  faith, 
and  without  intent  to  evade  the  laws  of  this  state,  a  transfer 
of  property  situated  within  it;  but  such  person  cannot  make 
a  general  assignment  of  property  situated  in  this  state  for 
the  satisfaction  of  all  his  creditors,  except  as  in  this  title  pro- 
vided; nor  do  the  provisions  of  this  title  affect  the  power  of 
a  person,  although  insolvent,  and  whether  residing  within  or 
without  this  state,  to  transfer  property  in  this  state,  in  good 
faith  to  a  particular  creditor,  or  creditors,  or  to  some  other 
person  or  persons  in  trust  for  such  particular  creditor  or 
creditors  for  the  purpose  of  paying  or  securing  the  whole  or 
part  of  a  debt  owing  to  such  creditor  or  creditors,  whether 
in  his  or  their  own  right  or  otherwise. 

History:  Enacted  March  21,  1872;  amended  March  8.  1SS9, 
Stats,  and  Amdts.  1889,  p.  82;  amended  by  Code  Commission. 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  422,  held  un- 
constitutional, see  history,  §4  ante;  amendment  re-enacted 
March   21,  1905,   Stats,  and  Amdts.   1905,  p.   622. 

1039 


§§3452-3457  civil  code.  [Div.IV,Pt.II. 

§3452.  WHAT  DEBTS  MAY  BE  SECURED.  An  as- 
signment for  the  benefit  of  creditors  may  provide  for  any 
subsisting  liability  of  the  assignor  which  he  might  lawfully 
pay,  whether  absolute  or  contingent. 

History:      Enacted   March    21,    1S72. 

§3453.     WHAT     PREFERENCES     MAY     BE     GIVEN 

[repealed] . 

History:  Enacted  March  21.  1872;  repealed  March  30,  1S74, 
Code  Amdts.    1873-4,   p.    267. 

§3454.  PREFERENCE  MUST  BE  ABSOLUTE  [re- 
pealed]. 

History:  Enacted  March  21,  1872;  repealed  March  3(',  1874, 
Code  Amdts.   1873-4,  p.   267. 

§3455.  CERTAIN  RIGHTS  NOT  AFFECTED  BY 
PREFERENCES  IN  ASSIGNMENT   [repealed]. 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1S73-4,   p.    267. 

§3456.     JOINT   AND    SEPARATE    DEBTS    [repealed  |. 

Histiry:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   267. 

§3457.  ASSIGNMENT,  WHEN  VOID.  An  assignment 
for  the  benefit  of  creditors  is  void  against  any  creditor  of  the 
assignor  not  assenting  thereto,  in  the  following  cases: 

1.  If  it  give  a  preference  of  one  debt  or  class  of  debts  over 
another. 

2.  If  it  tend  to  coerce  any  creditor  to  release  or  com- 
promise his  demand. 

3.  If  it  provide  for  the  payment  of  an}-  claim  known  to  the 
assignor  to  be   false  or  fraudulent;   or  for    the    payment    of 

1040 


Tit.Ill.l  INSTRUMENT   OF   ASSIGNMENT.         §§3458,3459 

more   upon   any   claim   than   is   known   to   he  justl}"   clue   from 
the  assignor. 

4.  If  it  reserve  an}-  interest  in  the  assigned  property,  or 
in  any  part  theerof,  to  the  assignor,  or  for  his  benefit,  before 
all  his  existing  debts  are  paid. 

5.  If  it  confer  upon  the  assignee  any  power  which,  if  exer- 
cised, might  prevent  or  delay  the  immediate  conversion  of 
the  assigned  property  to  the  purposes  of  the  trust. 

6.  If  it  exempt  him  from  liability  for  neglect  of  duty  or 
misconduct. 

Historj-:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,  pp.    267-8. 


§3458.     THE    INSTRUMENT    OF    ASSIGNMENT.     An 

assignment  for  the  benefit  of  creditors  must  be  in  writing, 
subscribed  by  the  assignor,  or  by  his  agent  thereto  author- 
ized in  writing,  and  the  transfer  bj'  the  sheriff  must  also  be  in 
writing,  subscribed  by  the  sheriff  in  his  official  capacity. 
Both  such  assignment  and  such  transfer  must  be  acknowl- 
edged, or  proved  and  certified,  in  the  mode  prescribed  by 
the  chapter  on  recording  transfers  of  real  propertj^  and  be 
recorded  as  required  by  sections  thirty-four  hundred  and 
sixty-three  and  thirty-four  hundred  and  sixty-four;  but  re- 
cording in  one  county  constitutes  a  compliance  with  the  fol- 
lowing section. 

History:      Enacted    March    21,    1872;    amended    March    7,    1889, 
Stats,    and    Amdts.    1889,    p.    82. 


§3459.  COMPLIANCE  WITH  PROVISIONS  OF  LAST 
SECTION  NECESSARY  TO  VALIDITY  OF  ASSIGN- 
MENT. L'nless  the  provisions  of  the  last  section  are  com- 
plied with,  an  assignment  for  the  benefit  of  creditprs  is  void 
against  every  creditor  of  the  assignor  not  assenting  thereto. 

History:      Enacted  March   21,   1872. 

1041 


§S  3460-3462  CIVIL  CODE.  [Div.IV.Pt.II. 

§3460.  ASSIGNEE  TAKES,  SUBJECT  TO  RIGHTS 
OF  THIRD  PARTIES.  An  assignee  for  the  benefit  of  cred- 
itors is  not  to  be  regarded  as  a  purchaser  for  value,  and  has 
no  greater  rights  than  his  assignor  had,  in  respect  to  things 
in  action  transferred  by  the  assignment. 

History:      Enacted  March  2],   1872. 

§  3461.  INVENTORY  REQUIRED.  Within  twenty  days 
after  an  assignment  is  made  for  the  benefit  of  creditors,  the 
assignor  must  make  and  file,  in  the  manner  prescribed  by 
section  thirty-four  hundred  and  sixty-three,  a  full  and  true 
inventory,  showing: 

1.  All  the  creditors  of  the  assignor; 

2.  The  place  of  .residence  of  each  creditor,  if  known  to 
the  assignor;  or  if  not  known,  that  fact  must  be  stated; 

3.  The  sum  owing  to  each  creditor  and  the  nature  of  each 
debt  or  liability,  whether  arising  on  written  security,  account, 
or   otherwise; 

4.  The  true  consideration  of  the  liability  in  each  case,  and 
the  place  where  it  arose; 

5.  Every  existing  judgment,  mortgage,  or  other  security  for 
the  payment  of  any  debt   or  liability  of  the  assignor; 

6.  All  property  of  the  assignor  at  the  date  of  the  assign- 
ment, which  is  exempt  bj^  law  from  execution;  and, 

7.  All  of  the  assignor's  property  at  the  date  of  the  assign- 
ment, both  real  and  personal,  of  every  kind,  not  so  exempt, 
and  the  encumbrances  existing  thereon,  and  all  vouchers  and 
securities  relating  thereto,  and  the  value  of  such  property 
according  to   the   best  knowledge   of  the  assignor. 

Hi.story:      Enacted  March   21,   1ST2. 


§3462.  VERIFICATION  OF  INVENTORY.  An  affi- 
davit must  be  made  by  everj^  assignor  executing  an  assign- 
ment for  the  benefit  of  creditors,  to  be  annexed  to  and  filed 
with   the   inventory  mentioned  in  the  last  section,  to   the  ef- 

1042 


Tit. III.]  INVENTORY— RECORDTNG.  §3463 

feet  that  the  same  is  in  all  respects  just  and  true  according 
to  the  best  of  such  assignor's  knowledge  and  belief.  If  the 
assignor  neglects  or  refuses  to  make  and  file  such  inventory 
and  afifidavit  within  said  twenty  days,  the  assignment  shall 
not,  for  that  reason,  be  afifected  in  any  way,  but  in  that  event 
the  assignee  or  assignees  elected  by  the  creditors  shall  with- 
in twenty  days  thereafter  make  and  tile  in  the  office  of  the 
county  recorder  where  the  assignment  is  first  recorded,  a 
verified  inventory  of  all  assets  received  by  them; 

[Citation  by  court  to  appear,  etc.]  and  such  assignee  or 
assignees  may  at  any  time,  or  from  time  to  time,  after  the 
transfer  to  them  by  the  sheriff,  by  petition  to  the  superioi 
court  of  the  county [,]  or  city  and  county [,]  where  the  as- 
signment is  first  recorded,  cause  the  assignor,  by  order  or 
citation [,]  to  appear  before  said  court,  or  a  cominissioner  or 
referee  to  be  appointed  by  it,  at  a  time  and  place  within  the 
county,  or  city  and  county,  to  be  designated  in  the  order  or 
citation,  to  be  examined  touching  the  matters  mentioned  in 
section  three  thousand  four  hundred  and  sixty-one,  and  any 
other  matters  relative  to  the  assignment,  and  to  have  with 
him  all  books  of  account,  vouchers,  and  papers  relating  to 
the  assigned  property;  and  such  court  may  by  its  order  re- 
quire the  surrender  to  such  assignee  or  assignees  of  such 
books,  vouchers,  and  papers,  to  be  bj^  them  retained  until 
their  trust  is  fully  completed  and  performed. 

History:  Enacted  March  21,  1S72;  amended  March  7,  1.S89, 
Stats,   and   Amdts.    1,SS9,  pp.   82-3. 

§3463.  RECORDING  ASSIGNMENT  AND  FILING 
INVENTORY.  An  assignment  for  the  benefit  of  creditors 
must  be  recorded,  and  the  inventory  required  by  section 
thirty-four  hundred  and  sixty-one  filed  with  the  county  re- 
corder of  the  county  in  which  the  assignor  resided  at  the 
date  of  the  assignment;  or,  if  he  did  not  tlien  reside  in  tliis 
state,  with  the  recorder  of  tlie  county  in  wliich  liis  ])rinciinil 
place  of  business  was  then  situated;  or,  if  he  had  not  tlien  a 

1043 


§§3464-3466  '       civil  code.  [Div.IV.Pt.IT. 

residence  or  place  of  business  in  this  state,  with  the  recorder 
of  the  county  in  which  the  principal  part  of  the  assigned 
property  was  then  situated. 

History:      Enacted  March   21,   1872. 


§3464.  SAME.  MORE  THAN  ONE  ASSIGNOR  RE- 
CORDING ASSIGNME'NT.  If  an  assignment  for  the  bene- 
fit of  creditors  is  executed  by  more  than  one  assignor,  it  may 
be  recorded,  and  a  copy  of  the  inventory  required  by  section 
thirty-four  hundred  and  sixtA-one  may  be  filed  with  the  re- 
corder of  the  county  in  which  any  of  the  assignors  resided 
at  its  date,  or  in  which  any  of  them,  not  then  residing  in  this 
state,  had  then  a  place  of  business. 

History:      Enacted  March   21,   1872. 

§3465.  ASSIGNMENT,  WHEN  VOID.  An  assignment 
for  the  benefit  of  creditors  is  void  against  creditors  of  the 
assignor  and  against  purchasers  and  encumbrances  in  good 
faith [,]  and  for  value [,]  unless  it  is  recorded  as  provided  in' 
this  title,  and  unless  either  the  inventory  required  by  section 
three  thousand  four  hundred  and  sixty-one,  or  the  inventory 
required  of  the  assignee  or  assignees  by  section  three  thou- 
sand four  hundred  and  sixty-two  [,]  is  filed  in  the  manner 
provided  in  this  title  and  within  the  time  designated. 

History:  Enacted  March  21,  1872;  amended  February  25,  1S7S, 
Code  Amdts.  1S77-8.  p.  90;  March  7,  1889,  Stats,  and  Amdts.  1889, 
p.   S3. 


§  3466.     ASSIGNMENT  OF  REAL  PROPERTY.     Where 

an  assignment  for  the  benefit  of  creditors  embraces  real 
property,  it  is  subject  to  the  provisions  of  article  four  of  the 
chapter  on  recording  transfers,  as  well  as  to  those  of  this 
title. 

History:      Enacted  March   21,   1872. 

1044 


Tit. Til. 1  BOND— CONDITIONS.  §§3467,3468 

§  3467.  BOND  OF  ASSIGNEES.  No  bond  shall  be  given 
liy  the  sheriff,  but  he  shall  be  liable  on  his  official  bond  for 
the  care  and  custody  of  the  property  while  in  his  possession. 
Within  forty  days  after  date  of  the  transfer  by  the  sheriff, 
the  assignee  must  enter  into  a  bond  to  the  people  of  this 
state  in  such  amount  as  may  be  fixed  by  a  judge  of  the  su- 
perior court  of  the  county,  or  city  and  county,  in  which  an 
inventory  in  accordance  with  the  provisions  of  this  title  is 
filed,  with  sufficient  sureties  to  be  approved  by  such  judge 
and  conditioned  for  the  faithful  discharge  of  the  trust  and 
the  due  accounting  for  all  moneys  received  by  the  assignee, 
which  bond  must  be  filed  in  the  same  office  with  the  inven- 
tory; and  any  assignee  failing  to  comply  with  the  provisions 
of  this  section  may  be  removed  by  the  above-named  superior 
court  on  petition  of  the  assignor  or  any  creditor,  and  his 
successor  appointed  by   such   court. 

History:  Enacted  March  21,  1872;  amended  February  15,  1883, 
Stats,  and  Amdts.  1883,  p.  2;  March  7,  1889,  Stats,  and  Amdts. 
1889.  p.   S3. 

§3468.  CONDITIONS  OF  DISPOSAL  AND  CONVER- 
SION. Until  a  verified  inventory  has  been  made  and  filed, 
either  by  the  assignor  or  assignee,  as  required  by  the  pro- 
visions of  this  title,  and  the  assignee  has  given  the  bond  re- 
(|uired  by  the  last  section,  such  assignee  has  no  authority  to 
dispose  of  the  property  of  the  estate,  or  any  part  of  it  (ex- 
cept in  the  case  of  perishable  property,  which  in  his  discre- 
tion he  may  dispose  of  at  any  time,  and  receive  the  proceeds 
of  sale  thereof);  nor  has  he  power  to  convert  the  property, 
or  the  proceeds  of  any  sale  of  perishable  property,  to  the  pur- 
poses of  the  trust. 

[Publication  by  assignee.]  W'itliin  ten  days  after  the  filing 
of  his  bond,  the  assignee  must  commence  the  publication 
(and  such  publication  shall  continue  at  least  once  a  week  for 
four  weeks),  in  some  newspaper  published  in  the  county,  or 
city  and  county,  where  the  inventory  is  filed,  of  a  notice  to 

1045 


55,3468  CAYU.    CODK.  [  Div.I  V.Pt.I  I. 

creditors  of  the  assignor,  stating  the  fact  and  date  of  the 
assignment,  and  requiring  all  persons  having  claims  against 
the  assignor  to  exhibit  them,  with  the  necessary  vouchers, 
and  verified  by  the  oath  of  the  creditor,  to  the  assignee,  at 
his  place  of  residence  or  business,  to  be  specified  in  the  no- 
tice; and  he  shall  also,  within  ten  days  after  the  first  pub- 
lication of  said  notice,  mail  a  copy  of  such  notice  to  each 
creditor  whose  name  is  given  in  the  instrument  of  assign- 
ment, at  the  address  therein  given.  After  such  notice  is 
given,  a  copy  thereof,  with  affidavit  of  due  publication  and 
mailing,  must  be  filed  witli  the  countj'  recorder  with  whom 
the  inventory  has  been  filed,  which  affidavit  shall  be  prima 
facie  evidence  of  the  facts  stated  therein. 

[Dividends.]  At  any  time,  or  from  time  to  time,  after  the 
expiration  of  thirty  days  from  the  first  publication  of  said 
notice  (provided,  the  same  shall  also  have  been  mailed  as  in 
this  section  provided),  the  assignee  may,  in  his  discretion, 
declare  and  pay  dividends  to  the  creditors  whose  claims 
have  been  presented  and  allowed.  No  dividend  already  de- 
clared shall  be  disturtjed  by  reason  of  claims  being  subse- 
quently presented  and  allowed;  but  the  creditor  presenting 
such  claims  shall  be  entitled  to  a  dividend  equal  to  the  per 
cent  already  declared  and  paid,  before  any  further  dividend 
is  made;  provided,  however,  that  there  be  assets  sufficient 
for  that  purpose;  and  provided,  that  the  failure  to  present 
such  claim  shall  not  have  resulted  from  his  own  neglect,  and 
he  shall  attach  to  such  claim  a  statement,  under  oath,  show- 
ing fully  wh}^  the  same  was  not  before  presented. 

When  a  creditor  has  a  mortgage  or  pledge  of  real  or  per- 
sonal property  of  the  debtor,  or  a  lien  thereon,  for  securing 
the  payment  of  a  debt  owing  to  him  from  the  debtor,  and 
shall  not  have  conveyed,  released,  or  delivered  up  such  se- 
curity to  the  sheriff,  as  provided  for  by  section  three  thou- 
sand four  hundred  and  forty-nine  of  this  code,  he  shall  be 
admitted  as  a  creditor  only  for  the  balance  of  the  debt  after 
deducting  the  value  of  such  mortgage,  pledge,  or  lien,  to  be 

1046 


Tit. III. I  ACCOUNTING   OF   ASSIGNEE.  §§3469,3470 

ascertained  bj^  agreement  between  him  and  the  assignee,  or 
by  a  sale  thereof,  to  be  made  in  such  manner  as  the  superior 
court  of  the  county  in  which  the  assignment  is  made  shall 
direct;  or  the  creditor  may  release  or  convey  his  claim  to 
the  assignee  upon  such  property,  and  be  admitted  to  prove 
his  whole  debt. 

[Right  of  redemption.]  If  the  value  of  the  property  ex- 
ceeds the  sum  for  which  it  is  so  held  as  security,  the  as- 
signee maj'  release  to  the  creditor  the  debtor's  right  of  re- 
demption thereon  on  receiving  such  excess;  or  he  may  sell 
the  property,  subject  to  the  claim  of  the  creditor  thereon; 
and  in  either  case  the  assignee  and  creditor,  respectively, 
shall  execute  all  deeds  and  writings  necessary  or  proper  to 
consummate  the  transaction.  If  the  property  is  not  sold  or 
released,  and  delivered  up,  the  creditor  shall  not  be  allowed 
to  prove  any  part  of  his  debt. 

History:  Enacted  March  21,  1872;  amended  March  7,  1889, 
Stats,  and  Amdts.  1889,  p.  83;  March  26,  1895,  Stats,  and  Amdts. 
189.5,  p.  84. 

§  3469.  ACCOUNTING  OF  ASSIGNEE.  After  six 
months  from  the  date  of  an  assignment  for  the  benefit  of 
creditors,  the  assignee  maj'  be  required,  on  the  petition  of 
anj'  creditor,  to  account  before  the  superior  court  of  the 
countj^  where  the  accompanying  inventory  was  filed  in  the 
manner  prescribed  by  the  insolvent  laws  of  this  state. 

Hi.story:  Enacted  March  21.  1872;  amended  February  15,  1883, 
Stats,  and  Amdts.  1883,  p.   3. 

§3470.  PROPERTY  EXEMPT.  Property  exempt  from 
execution,  and  insurance  upon  the  life  of  the  assignor,  do  not 
pass  to  the  assignee  by  a  general  assignment  for  the  benefit 
of  creditors,  unless  the  instrument  specially  mentions  them, 
and  declares  an  intention  that  they  should  pass  thereby. 

History:      Enacted   March   21,   1S72. 

1047 


§§3471-3473  civil  code.  [Div.IV.Pt.II. 

§3471.  COMPENSATION.  The  elected  assignee  or  as- 
signees for  the  benefit  of  creditors  shall  be  entitled  to  the 
same  commissions  on  assignments  heretofore  and  hereafter 
made  as  are  allowed  by  law  to  the  assignees  in  insolvency, 
and  the  assignment  cannot  grant  more.  Such  assignee  or  as- 
signees shall  also  be  entitled  to  all  necessary  expenses  in 
the  management  of  their  trust. 

History:  Enacted  March  21,  1S72;  amended  March  7,  1889, 
Stats,  and  Amdts.   1889,  p.  84. 

'§3472.  ASSIGNEES  PROTECTED  FOR  ACTS  DONE 
IN  GOOD  FAITH.  An  assignee  for  the  benefit  of  credi- 
tors is  not  to  be  held  liable  for  his  acts,  done  in  good  faith, 
in  the  execution  of  the  trust,  merely  for  the  reason  that  the 
assignment  is  afterward  adjudged  void. 

History:      Enacted  March   21.   1n72. 

§3473.  ASSENT  OF  CREDITOR  NECESSARY  TO 
MODIFICATION  OF  ASSIGNMENT.  An  assignment  for 
the  benefit  of  creditors  which  has  been  executed  and  re- 
corded so  as  to  transfer  the  propertj'^  to  the  sheriff,  or  a 
transfer  by  the  sheriff  to  the  elected  assignee  or  assignees 
which  has  been  executed  and  recorded,  cannot  afterwards  be 
modified  or  canceled  by  the  parties  without  the  consent  of 
the  assignor  and  of  every  creditor  affected  thereby. 

History:  Enacted  March  21,  1872;  amended  March  7,  lbS9, 
etats.   and  Amdts.    1889,  p.   84. 


1048 


Pt.III.Tit.I.]  NUISANCE— PRINCIPLES.  §§3479,3480 


PART   III. 

NUISANCE. 

Title     I.     General  Principles,  §§  3479-3484. 
II.     Public  Nuisances,  §§3490-3495. 
HI.     Private  Nuisances,  §§3501-3503. 


TITLE  I. 

GENERAL  PRINCIPLES. 

§  3479.  Nuisance,    what. 

§  3480.  Public   nuisance. 

§  3481.  Private   nuisance. 

§  3482.  What  is  not  deemed  a  nuisance. 

§  3483.  Successive    owners. 

§  3484.  Abatement   does    not   preclude   action. 

§  3479.  NUISANCE,  WHAT.  Anything  which  is  injuri- 
ous to  health,  or  is  indecent  or  ofifensive  to  the  senses,  or 
an  obstruction  to  the  free  use  of  property,  so  as  to  interfere 
with  the  comfortable  enjoyment  of  life  or  property,  or  un- 
lawfully obstructs  the  free  passage  or  use,  in  the  customary 
manner,  of  any  navigable  lake,  or  river,  bay,  stream,  canal,  or 
basin,  or  any  public  park,  square,  street,  or  highway,  is  a 
nuisance. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  268;  amended  by  Code  Commission  Act, 
March  16,  1901,  Stats,  and  Amdt.s.  1900-1,  p.  420,  held,  unconsti- 
tutional,  see   hi.story,    §  4   ante. 

§3480.  PUBLIC  NUISANCE.  A  public  nuisance  is  one 
which  affects  at  the  same  time  an  entire  community  or  neigh- 

1049 


§§3481-3484  Civil,  code.  [Div.IV.Pt.TIT. 

borhood,  or  any  considerable  number  of  persons,  although 
the  extent  of  the  annoyance  or  damage  inflicted  upon  in- 
dividuals may  be  unequal. 

Hls*ory:  Enacted  March  21.  1S72;  amended  March  30,  IHH, 
Code  Amdts.   1S73-4.  p.   268. 

§  3481.  PRIVATE  NUISANCE,  Every  nuisance  not  in- 
cluded in  the  definition  of  the  last  section  is  private. 

History:      Enacted   INIarch   21,   1ST2. 

§3482.     WHAT     IS     NOT     DEEMED     A     NUISANCE. 

Nothing  which  is  done  or  maintained  under  the  express  au- 
thority of  a  statute  can  be  deemed  a  nuisance. 

History:      Enacted  March   21,   1872. 

§3483.  SUCCESSIVE  OWNERS.  Every  successive 
owner  of  property  who  neglects  to  abate  a  continuing  nuis- 
ance upon,  or  in  the  use  of,  such  property,  created  by  a  for- 
mer owner,  is  liable  therefor  in  the  same  manner  as  the  one 
who  first  created  it. 

History:      Enacted  March   21,   1872. 

§3484.  ABATEMENT  DOES  NOT  PRECLUDE  AC- 
TION. The  abatement  of  a  nuisance  does  not  prejudice  the 
right  of  any  person  to  recover  damages  for  its  past  existence. 

History:      Enacted   March   21,   1872. 


1050 


Tit. II. I  PUBLIC    NUISANCE.  §§3490-3493 


.     TITLE   11. 

PUBLIC  NUISANCES. 

§  3490.  Lapse   of  time   does   not  legalize. 

§  3491.  Remedies   against   public   nuisance. 

§  3492.  How  regulated. 

§  3493.  Remedies    for    public    nuisance. 

§  3494.  Action. 

§  3495.  How    abated. 

§  3490.     LAPSE  OF  TIME  DOES  NOT  LEGALIZE.     No 

lapse  of  time  can  legalize  a  public  nuisance,  amounting  to  an 
actual  obstruction   of  public  right. 

History:      Enacted  March   21,   1S72. 

§349L     REMEDIES    AGAINST    PUBLIC     NUISANCE. 

The  remedies  against  a  public  nuisance  are:  ' 

1.  Indictment  or  information; 

2.  A  civil  action;  or, 

3.  Abatement. 

History:      Enacted    Marcli     21,    1S72;    amended    March    2,    1880, 
Code  Amdts.   1880    (C.  C.  pt.)   p.   1. 

§3492.     HOW     REGULATED.     The    remedy    by    indict- 
ment or  information  is  regulated  by  the  penal  code. 

IliMtory:      Enacted    March    21,    1S72;    amended    March    2,    1880, 
Code  Amdts.   18S0    (C.  C.  pt.)   p.   1. 

Cogiinte   sections    to   which    reference    is    here   made   are   Penal 
Code    §§  370-374. 

§  3493.     REMEDIES  FOR  PUBLIC  NUISANCE.     A  pri- 

\'ate  person  may  maintain  an  action  for  a  ])ublic  nuisance,  if 
it  is  specially  injurious  to  himself,  but  not  otherwise. 
History:      Enacted   March   21,   1872. 

1051 


§5,3494,3495  ^^iviL  code.  [  Div.IV,Pt.lIi. 

§  3494.  ACTION.  A  public  nuisance  may  be  abated  by 
any   public   body   or   officer  authorized   thereto   by  law. 

History:      Enacted   March.  21,   1872. 

§  3495.  HOW  ABATED.  Any  person  may  abate  a  pub- 
lic nuisance  which  is  specially  injurious  to  him  by  removing, 
or,  if  necessary,  destroying  the  thing  which  constitutes  the 
same,  without  committing  a  breach  of  the  peace,  or  doing 
unnecessary  injury. 

HiHtory:      Enacted  March   21,    1872.  ^ 


1052 


Tit.IlI.]  PRIVATE    NUISANCE.  §§  35(J1-35U3 


TITLE   III. 

PRIVATE   NUISANCES. 

§  3501.     Remedies  for  private  nuisance. 
§  3502.     Abatement,  when  allowed. 
§  3503.     When  notice  is  required. 

§3501.     REMEDIES  FOR  PRIVATE  NUISANCE.     The 

remedies  against  a  private  nuisance  are: 

1.  A  civil  action;  or, 

2.  Abatement. 

History:      Enacted   March    21,   1872. 

Co^uate  .seotion— Nuisance  defined,  and  actions  for. — See  Code 
Civ.   Proc.    §  731  and   note. 

§3502.  ABATEMENT,  WHEN  ALLOWED.  A  person 
injured  by  a  private  nuisance  may  abate  it  by  removing,  or, 
if  necessary,  destroying  the  thing  which  constitutes  the  nuis- 
ance, without  committing  a  breach  of  the  peace,  or  doing  un- 
necessary injury. 

History:      Enacted   March   21,   1872. 

§3503.  WHEN  NOTICE  IS  REQUIRED.  Where  a  pri- 
vate nuisance  results  from  a  mere  omission  of  the  wrong- 
doer, and  cannot  be  abated  without  entering  upon  his  land, 
reasonable  notice  must  be  given  to  him  before  entering  to 
abate  it. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  423,  held 
unconstitutional,  see  history,   §  4  ante. 

Noll<'e  to   sin't'CMsive   owner. — See    note    14   Am.    Dec.    338-341. 


1053 


§§3509-3515  CIVIL  CODE.  [Div.IV,Pt.IV. 


PART  IV. 

MAXIM.S  OF  JURISPRUDENCE. 

§  3509.  The  maxims  of  jurisprudence  hereinafter  set  forth 
are  intended  not  to  qualify  any  of  the  foregoing  provisions 
of  this  code,  but  to  aid  in  their  just  application. 

Historj-:     Enacted  March   12,  1872.. 

§  3510.  When  the  reason  of  a  rule  ceases,  so  should  the 
rule  itself. 

History:     Enacted  March   12,  1872. 

§3511.  Where  the  reason  is  the  same,  the  rule  should  be 
the  same. 

History:     Enacted  March   12,  1S72. 

§  3512.  One  must  not  change  his  purpose  to  the  injury  of 
another. 

History:      Enacted  March   12,  1872. 

§  3513.  Any  one  ma}'  waive  the  advantage  of  a  law  in- 
tended solely  for  his  benefit.  But  a  law  established  for  a 
public  reason  cannot  be  contravened  by  a  private  agreement. 

History:      Enacted  March  12,  1872. 

§  3514.  One  must  so  use  his  own  rights  as  not  to  infringe 
upon  the  rights  of  another. 

History:     Enacted  March   12,  1872. 

§  3515.     He  who  consents  to  an  act  is  not  wronged  by  it. 

History:     Enacted  March  12,  1872. 

1054 


Pt.TV.l  MAXIMS   OF    JURISPRUDENCE.         §§3516-3524 

§  3516.     Acquiescence  in  error  takes  away  the  right  of  ob- 
jecting to  it. 

History:      Enacted   March   12,  1872.    . 

§  3517.     No  one  can  take  advantage  of  his  own  wrong. 
Hi.story:      Enacted   March   12,  1S72. 

§  3518.     He  who  has  fraudulentlj-  dispossessed  himself  of  a 
thing  may  l)e  treated  as  if  he  still  had  possession. 

History:      Enacted  March   12,  1S72. 

§  3519.     He  who   can   and  does    not    forbid    that    which    is 
done  on  his  behalf,  is  deemed  to  have  bidden  it. 

History:      Enacted  Mai'ch   12,  1872. 

§  3520.     No  one  should  sufifer  by  the  act  of  another. 
History:      Enacted  March   12,  1S72. 

§  3521.     He  who  takes  the  benefit  must  bear  the  burden. 
History:      Enacted   March    12,  1S72. 

§  3522.     One  wjio  grants  a  tiling  is  presumed  to  grant  also 
whatever  is  essential  to  its  use. 

History:      Enacted  March   12,  1872. 

§  3523.     l'~or  every  wrong  there  is  a  remedy. 
History:      Enacted  March   12,  1872. 

§  3524.     Between    those    who   are   equallj^   in   the    right,     or 
e(|ually  in  the  wrong,  the  law  does  not  interpose. 

History:      Enacted  March   12,  1872. 
1055 


§§3525-3533  civil  code.  [Div.IV. 

§  3525.  Between  rights  otherwise  equal,  the  earliest  is 
preferred. 

History:      Enacted  March   12,  1S72. 

§  3526.  Xo  man  is  responsible  for  that  which  no  man  can 
control. 

History:      Enacted  March   12,  1872. 

§  3527.  The  law  helps  the  vigilant,  before  those  who  sleep 
on  their  rights. 

History:      Enacted  March   12,  1872. 

§  3528.     The  law  respects  form  less  than  substance. 
History:      Enacted  March   12,  1872. 

§  3529.  That  which  ought  to  have  been  done  is  to  be  re- 
garded as  done,  in  favor  of  him  to  whom,  and  against  him 
from  whom,  performance  is  due. 

History:      Enacted  March   12,  1872. 

§  3530.  That  which  does  not  appear  to  exist  is  to  be  re- 
garded as  if  it  did  not  e.xist. 

History:      Enacted  March   12,  1872. 

§  3531.     The  law  never  requires  impossibilities. 
History:      Enacted  March   12,  1872. 

§  3532.     The  law   neither  does  not  requires  idle  acts. 
History:      Enacted  March   12,  1S72. 

§  3533.     The  law  disregards  trifles. 

History:      Enacted  March   12,  1872. 
1056 


Pt.IV.]  MAXIMS   OF   .JURISPRUDENCE.         §§3534-3543 

§  3534.  Particular  expressions  qualifj-  those  which  are 
general. 

Hi.«itorj-:      Enacted   March   12,  1S72. 

§  3535.     Contemporaneous  exposition  is  in  general  the  best. 

Hi.sl«irj-:      Enacted  March   12,  1872. 
§  3536.     The  greater  contains  the  less. 

History:      Enacted   March   12,  1872. 

§  3537.     Supcrtiuity  does  not  vitiate. 

Hi.slory:      Enacted   March   12,  1S72. 

§  3538.     That  is  certain  which  can  be  made  certain. 
History:      Enacted   March   12,  1872. 

§  3539.     Time  does  not  confirm  a  void  act. 

History:      Enacted   March   12,  1872. 

§  3540.  The  incident  follows  the  principal,  and  not  the 
principal  the  incident. 

History:      Enacted  March   12,  1872. 

§  3541.  An  interpretation  which  gives  effect  is  preferred  to 
one  which  makes  void. 

History:      Enacted   March   12,  1872. 

§3542.      Interpretation  must  be  reasonable. 

History:      Enacted   March    12,   1S72. 

§  3543.  Where  one  of  two  innocent  persons  must  suffer 
by  the  act  of  a  third,  he,  by  whose  negligence  it  happened, 
must  be  the  sufferer. 

History:      Enacted  March   12,  1872. 

3*  1057 


INDEX. 

[References   are   to   sections.] 

A    CONSIDERATION.      See    tit.    Valuable    Consideration. 
ABANDONMENT.      See    tit.      Appropriation. 

as   to   2716. 

in  marine  insurance.     See  tit.      Marine  Insurance. 

as  to  generally,   2716-2732. 
notice  on  actual  loss,  not  necessary,   2709. 
of   chil*  adoption,    224. 

by   father,  custody  on,   197. 

guardianship   of,   246. 

parent  presumed  to  relinquish   on,   211. 

what  deemed  to  be,  224. 
of  homestead,   1243,  1245. 
of   husband   by   wife,   support,    175. 
of  ship  by  master,  2041. 
of  water  appropriation,   1411. 
parent  by  child,  no  liability  for  support,  20S. 
shipmaster's  authority  terminated  by,  2381. 
thing  abandoned,  1872. 
water  appropriation,  of,   1411. 
what  deemed  to  be  of  child,  224. 
ABATEMENT 
by    legacy,    1362. 
of  nuisance.      See   tit.   Nuisance. 

as   to   generally,   3484-3503. 
ABDUCTION 

as  to,  in  general,  49. 
of  husband   or  wife,   etc.,   49. 
ABSOMITE  OWNERSHIP 

what    is,    679. 
ACCEPTANCE.      See   tits.      Contract;   Nck    tialilc   iiiKtrnniciits. 
of  accord,   1523. 

of  benefit   of   transaction,    1589. 
of  gift.     See  tit.     Gift. 
of  guaranty,   2795. 
of   partial   performance,    1741. 
of   principal,    waives    interest,    when,    3290. 
of  rent,  lease  renewed   by,  when,   1945. 
partial   performance,    of,    effect,    1741. 

1059 


INDEX. 
[References  are  to  sections. J 

ACCESSION 

as   to  acquisition   of  property   by,   1000. 

to   p^i'i^onol   property 

by  uniting  several   tilings.    102.5,    120.5. 
increase  of  thing  hired  belongs   to   hirer,    1926. 
increase   of   thing   pledged,    2989. 
inseparable   materials,   1029. 
materials   of  several   cwners,    1030. 
of  tiling  pledged,  belongs  to  pledgeor,   2991. 
owner's   election  between   thing  and  its  value,   1032. 
ownership    of.    732. 
principal  part,  what,  1026,   1027. 
product  of  thing  belongs   to  hirer,    1926. 
the   more   valuable   or   bulky,    1027. 
uniting   materials    and    workmanship,    1028. 
wilful  trespassers,  1031. 
wrongdoers,  liability   in  damages,   1033. 
to  realty 

alluvion.      See   tit.      Alluvion. 

as  to,  generally,  1014. 
avulsion.      See    tit.      Avulsion. 

as  to,  generally,   1015. 
fixtures.     See  tit.     Fixtures. 
as    to,    1013. 

removable  by   tenant,   1019. 
islands    in    navigable    and    non-navigable    streams.      See    tit. 
Islands.  ' 

formed   by  division   of  streams,    1018. 
sudden    removal    of   bank.      See    tit.      Avulsion. 
uniting   materials   and   workmanship,    1038. 
wilful    trespass,    1031. 
wrongdoer    liable    in    damagt^s.    1033. 
ACCESSORY 
a  lien  is,   2909. 

transfer   of  principal   thing  passes,    1084,   3540. 
ACCIDENT.      See   tit.      Mistake. 
deposit  by,   to  be  accepted,   1816. 

disregarding   erroneous  parts   in   written   instrument,    1640. 
trust  arising   from,    2224. 
ACCIDENT  INSrRANCE   CORPORATION.      See   tit.    Mutual   Life, 
Health,  and  Accident  Insurance  Corporation. 
investment   of   funds   of,    421,    421[a]. 
ACCIDENT   INSURANCE   POLICY 
"compensation,"   meaning   of,    164  4. 

1060 


INDEX. 

[References  are  to  sections.] 

.4CCORD   AlVD    SATISFACTION 

acceptance   of   consideration   extinguishes    obligation,    1523. 
accord 

as  to  what  is  an,  1521. 

effect  of,   1522. 
definition  of,   1521. 

part  performance  is  satisfaction,  when,   1524. 
satisfaction,   ■what   is,    1523. 
ACCOrXT.      See    tit.      Accounting. 
by    employee,    1986,    2014. 
by   partner,   2412,    2438. 
by   servant,   1986,    2014. 
by  trustee,   2237. 
.   partners'  mutual   liability  to,  2412.  ' 

ACCOl  XTIXG.      See    tit.      Account. 

by    partners.    2412. 
ACCRETIOX.      See   tit.      Accession. 
ACCrMUI.ATIOlV 

application   of  income   to   support   of   minor,   726. 
direction."*  for 

for  benefit  of  minors  in   being,   must  be,   724. 

for  longer   term    than    until   attaining   majoiity,    725. 

void   in  part  when,   effect   of.   725. 

void   unless   allowed  by   law,   723. 

when   void,   724,   725. 
express   trust  for,   of  rents   and   profits,    857. 
of  income   of  property 

for  benefit   of  one   or   more   persons,   724. 

rules   governing,    722. 

to  commence  at  a  subsequent   date,    724. 

to    commence    on    the    creation    of    the    interest,    724. 
rules  by  which  governed,  724. 

times  of  commencement  and  termination.  724. 
Ari\XOAVI,EDGE.  See  tits.  Adoption;  Rn.stards. 
.\CK]VO\VI,EDGMEXT.      See     tits.      Acl^nowIedRnieiil     of.  lontrii- 

nient.«i;    Deeds.    Registration;    AVills. 
act   citing   defect   in,    1207. 

affidavit  as  to  identity  of  person  executing,  1185. 
articles  of  incorporation,   of,  292. 

assignment  for  benefit   of  creditors,   of,   3458,   3459. 
by  attorney  in  fact,   form  of,  certificate,   1189. 
certificate   of 

by  attorney  in   fact,   form  of,    1189. 

damage    for   defective.    1202. 

1061 


INDEX. 

[References  are  to  sections.] 

ACKNOWLEDGMENT    (continued). 
oertifioate   of    (continued). 
defective  , 

how    corrected,    1202. 
validating,   1207. 

indorsement  of,  on,   118S. 

Justice  of  tlie  peace,  by,  1194. 
contempt,  punishment  for  by  officer  taking,   1201. 
conveyance   executed   before   code,    1205,    1206. 
corporations,  of 

as  to  how  executed,  llGl. 

form    of  acknowledgment   by,    1190. 

prerequisites    of   taking,    1185. 
correcting   defective   certificate    of,    1202. 
damages    for   defective,    1202. 
declaration   of   marriage,   of,   76,    79^/^. 
deputy   may   take,   1184. 
foreign 

certificate  of  clerk,   1189. 

form    of,    1189. 

who  may  take,  1182,   1183. 
form   of 

by  attorney   in    fact,    1188. 

by   corporation,    1190. 
general,  1189. 

of   foreign.    1189.  , 

illegitimate   child,    of,    1387. 
indorsement   on,    1188. 
interpreters,   1201. 

inventory  of  wife's  property,  of,  165. 
justice   of  the   peace,   power   to   take,    1194. 
mortgages,  of,   2952. 

of    abandonment    or   declaration    of   homestead,    1243. 
>^f  articles   of  incorporation,    292. 
of   assignment   for   benefit   of   creditors,    3458. 
of   assignment   of   debt   secured   by   mortgage,    2936. 
of  certificate  of  partnership,  2480. 
of  conveyances  made  before  the  code,   1205,    1206. 
of  homestead 

abandonment   of,    1243. 

conveyance   of,    1242. 
declaration   of,    1243. 
encumbrance   of,   1242. 
selection   of,   1262,    1266. 
of  illegitimate  child,   1387. 
of  inventory  of  wife's  property,   165. 

1062 


INDEX. 

[References  are  to  sections.] 

ACKNOWLEDGMENT    (continued). 
of  marriag^e 

declaration  of,  77. 

settlement  of,   178-180. 
of  married  woman's  conveyance,    11 87. 

deed,    1093. 

power   of   attorney,    1094. 
of   partnership    certificate,    2480. 
of  power   of  attorney  and   revocation,    1216. 
of  sale  of  wine,   3440. 

officers    taking,    authority    of,    1194,    1201. 
partnership,    of,    certificate    to,    2480. 
prerequisite   to  taking,   1185. 
proof  of  instruments  which   are   not,   119.">. 

action  and  judgment   for,    1203,    1204. 
recorded  ^vithout 

what  instruments  can   not  be,    llGl. 

what  instruments  m.ay  be,   11.59,   11  GO. 
requisites  of,  1185. 

seals  of  officers  to  be  affixed  when,   1193. 
signatures   of  officers  must   be  affixed,    1193. 
subpoenas  may  be  issued  by  officers  taking,   1201. 
wliat  law  governs,  1205,  1206. 
who  may   take  within  the  state,  1180-1184. 
who  may  take  witliout  the  United  States,   1183. 
witnesses    to.    1196,    1197. 
ACKNOAVI^EDGMKjVT    of    IIVSTUr>IElVTS 
by    married    ■»voii-:aii 

certificate   of  acknowledgment,    1187-1189. 
general   form   of  certificate   of  witliin    the   state,    11S9. 

outside  of  the  state,   1189. 
by   w^hom   may  be   taken   within   the  state,    1180-11  SI. 
by  whom  may  be   taken  without  the  state,    1182. 
by  whom  may  be  taken  without  the  United  States,   1183. 
certificate  of  justice   in  certain  cases,   119  1. 
defeetively    executo<l 

recording  imparts   notice,   1207. 

validating,    1207. 
deputy  can   take  acknowledgment   wlien,    1184. 
form   of  acknowledgment   by   attorney   in    fact,    1189. 
form   of   acknowledgment   by   corporation,    1190. 
form   of  ackuo'»vledfjrmPn*   by   married    %v<iiiian 

within   the   state,   llSt,    11S9. 

without   the   state,    1189. 
requisites    for    acknowledgment,    1185. 

1063 


INDEX. 

[References  are  to  sections.] 

ACQUIESCENCE 

objections   removed   by,    3516. 
ACTION 

by  owner  and  occupant  of  dominant   tenement,   809. 
by   owner   of   servient   tenement,    810. 
for  divorce.      See  tit.   Divorce. 

for  recovery  of  stock.     See  tit.     Assessment  of  ^toeks. 
for  overcharge  by  street  railroad  company,   50  4. 
lies   to  obtain   judgment  proving   instrument,    120". 
limitation  of.      See   tit.      Ijiinitaliou  of  Actions. 
pending,    not   affected   by   code,    6. 
purchaser  of  franchise  may  maintain,  wiien,  390. 
to  recover  assessment  of  corporate  stock,   349. 
ACT  OF   GOD 

liability    of   carrier    relieved    by,    2194. 
performance  of  obligation   excused  by,   1511. 
ACTUAL,  NOTICE.      See  tit.      Notice. 
ADEMPTION.      See   tit.      Legacies. 

deemed  advancement,   when,    1351. 
ADJOURNMENT 

of  corporate   election,   314. 
of  corporate  meeting,   312. 
ADMINISTRATOR.      See    tit.      Executor   anil   Adniiulstrator. 
ADMIRALTY.      See   tit.      Ships  and  SlilpDing. 
ADOPTION 

as   to   generally,    221. 
abandoned   child 

of,  consent  not  necessary,   224. 

when  child  deemed  to  be  abandoned,  224. 
adoption    of    illegitimate    child,    230. 
adopting   parent   must   be    ten    years   older,    222. 
any  minor  child  may  be  adopted,  221. 
by   wliom   child   may   be   adopted,    222. 
consent   to 

as   to   necessity  of,   224. 

of  child,   267. 

of  non-residents,  225. 

of  parents,   who   not   required,    224. 

of  wife,   223. 
contract  of 

how   entered   into,    226. 

to  be   filed,   227. 
deserted  child,   224. 
effect   of  adoption,    227,    228. 

on  former  relations  of  the  child,   229. 

1064 


INDEX. 
[References  are  to  sections.] 

ADOPTION    (continued). 
from   orphan   a-sylums 

in   general,   224. 

judge's   order   on   adoption,    227. 

name  of  adopting  parent,  child   may   take,   228. 

non-residents,    226.  /' 

one  spouse,  must  have  consent  of  other,  223. 

order  of  adoption,   227. 
to    be    filed,    227. 

petition   for,   226,   227. 

proceedings  on  adoption,   226,   227. 

when   not   necessary,   214. 

who  may  adopt,  221,  222. 
ADILT 

child,  compensation  for  support  of,   20S,   210. 

who   is   an,    27. 
ADULiTERV 

defense   of  plaintiffs   adultery,    93. 

definition    of,    93. 

divorce,    ground    for,    92. 
ADVANCEMENTS.      See   tit.      Legacies. 

child,   to,  effect  of,    1309. 

constitute   part   of   distributor's  share,   when,    1395. 

dpath  of  heir,  advance  to  before  decedent.   1399. 

during  life  of  testator,    effect  of,   1309. 

effect   on   share   of  child   receiving,    1395,   1399. 

effect  where  less  or  greater  than  share,   1396. 

taken   towards  share  In   testator's   estate,   1395. 

to  child,  effect  of,   1309. 

to  heir  who  dies  before  testator,   1399. 

value   of,   how   determined,    139S. 

what  are,   13  9  8. 

when    deemed   ademption.    1351. 

when   not  enough,  1396. 

when   too  much,   1396. 
ADVERSE   POSSESSION 

as  to  generally,  1007. 

confers   title,   when,   1007. 

owner   of   property   held   by,    may   transfer,    1047. 

property    so   held   may   be    mortgaged,    2921. 
ADVERSE  POSSESSION  OF   AVATERS.      See   tit.      ApproitriaHnn. 

10/35 


INDEX. 
[References  are  to  sections.] 

AFFIDAVIT 

as  to  sum   contributed   by  special   partner,   24S1. 
corporation,  of, 

autborized   in   act  as  executor,   etc.,   290a. 

on   filing  articles   of,    294. 
mining,  stiowing  work  done  or  n<)tices  posted,   11.59. 
of  payment  of  ten  per  cent  subscription  to  stock,  29."). 
of  publication  of  notice  of  sale  of  delinquent  stock,  348. 
of   subscription   to   stock,   etc.,   295. 
of  transfer  of  stock,   by   non-resident,    326. 
on   filing   articles    of   incorporation,    295. 
parlneT.ship 

fictitious   name,    2471. 

of   notice   of   special,    2484. 
to   inventory   in   assignment   for   benefit   of  creditors.    3462. 
when  required  on  transfer  of  certificate  of  stock,   326. 
AFFIRMATIONS.      See  tit.      Ostth. 

and    oaths,    officer    authorized    to    take    proof    of    instruments 
may  administer,  1201. 
AFTER-ACQUIRED    PROPERTV 

passes  by  ■will,  when.   1312. 
AFTER-ACQUIRED   TITLE 

conveyance   pa^^ses,    when,    1106. 
inures    to   mortgagee.    2930. 
AF^TER-HORN    CHILD 
takes  under  will,  1337. 
unprovided  for  to  succeed,  1306. 
AGE 

of    majority.      See    tit.      Majority. 
AGEXCY.      See    tit.      Agent. 

actual    agency,    what   is,    2299. 
actual  authority 

of  factor,   2368. 

defined,   2295. 
actual   or   ostensible  agency,    2298. 

actual  agency,  what,  2299. 

ostensible  agency,  what,    2300. 
acts  which  ap  agent  may  perform,    2305. 

acts  within    scope   of  authority    affecting  principal   how,    2330. 
atfent    as    trustee 

authority  as  to  persons  having  notice  of  restrictions,  231S. 

must   keep   principal    informed,    2020. 

not  having  authority   to  contract,   2345. 

not  to  act  in  own  name,  2322. 

1066 


INDEX, 
[References  are   to  sections.] 

AGENCY   (continued). 

ai^ent  as  trustee    (continued). 

rigiits    of    persons    dealing     with      witliout      knowledge    of 
agency,    2336. 

to  conform  to  autliority,   2019. 

to   define   scope   of  agency,   2322. 

under  legal   disability,    2355. 

warrant  of  authority,    2342. 

who  may  be,   2296. 
agent's  authority  as  to  persons  having  notice  of  restrictions, 

2318. 
as  to  persons  dealing  without  knowledge  of  agency,   2336. 
attorney  in  fact  to  convey  realty.      See   tit.      Attoruey  iu  Faet. 
auctioneers.      See   tit.     Auctioueers. 
authority    of   ageut 

agent    warrants    his,    234  2. 

as  to  persons  having  notice  of  restrictions,   231S. 

construed   by    its    specific    terms,    not    by    the    geneial    terms, 
2321. 

exceeded,   whether   principal    bound,    2333. 

exceptions  to  .general,   2322. 

implied,    2319. 

measure   of,    2315,    2318. 

necessary    authority    of,    2319. 

of  general   agent  to  receive  price  of  property,   2325. 

of  ostensible  authority,    2317. 

of   special    agent    to    receive    price,    2326. 

to  be  construed  by  its  specific  rather  than  its  general  terms, 
2321. 

to  disobey  instructions,  2320. 

to    receive   price,    2325. 

to  warrant,   2342. 

want  of,  actual,  2316. 

what  ailthority  may  be  conferred,   2304. 

what   included   in   authority   to   sell   real   property,    2323. 

what  included  in  power  to  sell  personal  property,   2323. 

what  may   be   delegated   to,   2304. 

whether  principal  bound  when   agent  exceeds,   2333. 
cannot   have   authority   to   defraud   principal,    2306. 

creation   of   agency   unnecessary,    2307. 
collection  duty  of,   2021. 

•onsideration    for    appointment    unnecessary,    2308, 
covenants  may  be  given   by  agent,    2324. 

1067 


INDEX. 
[References  are  to  sections.] 

AGENCY   (continued), 
created,   how,   2307. 
created  by    ratification,    2307. 
damages  for  breacli  of  warranty  of  agent's  authority,   331 S. 

death   of 

agent   terminates,   23.55. 

principal   terminates,    2356. 
definition,    2295. 
delegation  of  authority,  2349-2350.  / 

when  agent  may   make,   2349. 
delivery  of  contract  to  agent,  1626. 
exceptions   to  general  authority,  2322. 
exclusive  credit  given  to,   effect,   2335. 
factors.     See  tit.     Fact€>rs. 
fraud   of,   2306. 

!;;eiieral  ageut 

autliority   to   receive  price,   2325. 
defined,    2297. 
general  or  special  agency,  2297. 
incapacity  of  party   terminates,   2345. 
indemnity  against  acts  of,  2775. 
instructions,  agent's  power  to  disobey,  2320. 
instrument  executed  by  binds  principal,  when,   2337. 
instrument    intended    to    bind    principal    does    not    bind    agent. 

2337. 
insurance  by,  2589. 
interpretation   of  authority,   2321. 
manager  of  ship  general  agent  for  owners,   2070. 
married    woman's    power    of    attorney,    1094. 
measure   of   agent's   authority,    2315-2318. 
minor  cannot  delegate  power,   33. 
mutual  obligations  of  principals  and  agents  to   third  persons, 

2330. 
necessary  authority  of  agent,   2319. 

negligence  or  omission  of,  principal  responsible,  2338. 
not  having  capacity  to  contract,   2345. 
notice    of    dishonor    by    agent,    3148. 
notice  to  agent.     See  tit.     Coustruotive  iu»tiee. 

binds   principal,   when,   2332. 
obligation  of  agent  to  surrender  property  to  third  person. 

2344. 
oral  authorization,   2309. 
ostensible   agency,    what    is,    2300. 

1068 


INDEX. 
[References  are  to  sections.] 

AGENCY   (continued). 

ostensible  authority  of  ageut 

as   to,   generally,   2300. 

defined,    2300. 

of  factor,   2369. 

principal   not   liable   for   acts   under,   when,    2334. 

what   amounts   to,    2317. 
particular    agencies,    as    to    generally,    2362. 
partner   agent   for   firm,    2429. 

liable  as  agent,  2443. 
pilots.     See  tit.   Sliiiuiiaster.s  ami  Pilots. 
power  of  attorney  to  gratuitous  employee,   1975. 
poWer  to  disobey   instructions,   2320. 
price,   authority   to    receive,    2325. 
priuoipnl    bound 

by  instrument  executed  by   agent,  when,   2337. 

how    affected    by    agent's    acts    within    scope    of    authority, 
2330. 

when    bound    by    incomplete    execution,    2331. 

when  bound  where  agent  exceeds  authority,  2333. 
ratification 

creates  agency,  2307. 

created,  agent's  liability  respecting,   2339. 

effect  of  giving  exclusive  credit   to,   2335. 

of   agent's   acts,    2310. 

of  part  of   transaction,   2311. 

void,  when,   2312. 

'   i  ^  * 

wlien  and  hovr  may  be  made 

as   to,    generally,    2310. 

not   to  work   injury   to   third   party,   2313. 

of  part   of   transaction,    2311. 

rescission   of,   2314. 

when  ratification  void,  2312. 
real   estate   agent  may   give   covenant,   2324. 
real   estate  brokers,   statute  of  frauds   relating   to,    1624. 
representations,   power   of  agent   to   make,    2319. 
rescission  of  ratification   of  agent's  act,   2314. 
responsible    to    third    parties,    2343. 
revocation   by  principal    terminates    agency,    2355. 
rights    of    persons    dealing     with      agent     without    notice    of 

agency,    2336. 
scope  of,   agent  not   to   define,   2322. 

set-off    against   claim    of    principal    by    third    person,    2336. 
shipmasters.      See  tit.      SliipmasUTN  and   I'iiotN. 
ship's    manager.      See    tit.      Sliiii'M    Klana^^er. 

1069 


INDEX. 
[References  are  to  sections.] 

AGENCY   (continued). 
special   agent 

authority    to    receive    price,    2325. 

defined,   2297. 
statute   of  frauds   in   relation    to,    1624,    2309. 
Miibagent 

liability  of,   2022. 

rightfully    appointed    represents    principal,    2351. 

termination   of  power   coupled   with   interest,    2355. 

unauthorized    employment    of,    2350. 
termination   of 

by   death  of  agent,   2355. 

by  death  of  principal,   235  6. 

by    extermination    of    subject   of,    2355. 

where    coupled    with    an    interest,    2356. 
third    person,    agent's    obligation    to    surrender    property    to, 

2344. 
third  persons  not  to  be  injured  by  ratification  of  agenfs  act, 

2313. 
torts,   agent's   liability   for   to   third   person,    2343. 
torts  of  agent,  liability  of  principal   for,   2336.   2339. 
trustee's   power,    as,    2267. 
warrant    of    authority    of,    2323,    2342. 
who  may  appoint  an  agent,   2296. 
who   may  be  an   agent,   2296. 

wilful   wrongs   of  the  agent,   principal    liable   for,   when,    2339. 
AGENT.      See   tits.      Agency;    Employment;    Master   and   Servant. 
appointment  of  for  co-operative  corporations,   653,   653q,    653x. 
collecting  agent.     See  tit.     Attorney. 

duties   and  powers  of,   2021. 
must   conform    to   authority   conferred,    2019. 
must   keep   his   principal    informed,    2020. 

notice   to    in    line    of   duty.      See   tit.      Constructive    A'otice. 
of   corporations.      See   tits.      Corporations;   Corporate   Po^v»»rs. 

of  co-operative   agricultural,   etc.,   association,   appointment, 
of,   653q. 

of  co-operative  corporations,  appointment  of,  fi53x. 
power   to   sell,   and   receive   payment,    1142. 
responsibility   as   subagent,    2022. 
AGISTOR 

as   to   lien    upon   property,    3051. 
AGREEMENT.      See   tit.      Contract. 
seamen  not  to  lose  wages  by,   2056. 

1070 


INDEX. 
[References  are  to  sections.] 

AGRICULTURAL  FAIR   CORPORATIONS 

debts  and  liabilities,  amount  tliat  may  be  contracted,  621. 

liabilities  which  may  be  contracted,  621. 

may    acquire    and    hold   real    estate,    620. 

may   fix    fee,   etc.,   of   membership,    622. 

not  for  profit,   622. 
AGRICULTURAL   LANDS.      See   tit.      Lease. 

lease  of  for  more  than   fifteen  years  void,   717. 
ALIENATION.      See   tit.      Conveyance. 
ALIENS 

apprenticeship   of,   274. 

estate  of,  when  vests  in  sovereign,   1404. 

Inheriting  must  claim  within  five  years,  672. 

property  rights  of,   671. 

right  to  inherit  and  succeed,  1404. 
ALIMONY.      See   tits.      Allovance;   Divorce. 

pendente   lite,   when   allowed,    137. 
ALLUVION.      See   tit.    Accession. 

accession  by,    1014. 

definition   of,   1014. 

islands.     See   tit.      Island.s. 

ownership   of,   1014. 

sudden   removal   of  bank   of  stream,    1015. 
ALTERATION 

and    cancellation    of    contracts,    in    general.    1697-1701. 

of  duplicate  of  contract,   1701. 

of  legal   relation   of  adopted  child,   229. 

of   legal   relations   of   husband   and    wife,    159. 
.ALTERNATIVE 

future   interest   in    the,    602. 

obligations  in  the,   1448,   1451. 
ALTERNATIVE    OBLIGATIONS.      See     tit.      Oblisratioiis. 
AMBIGUITA' 

in    contracts,   construction    of,    1 .376-1 40.3. 

in   wills,   construction  of,   1323. 
AMENDMENT.      See    tit.      Corporations. 

to  articles  of  incorporation,  362. 
AMUSEMENT,   PLACE   OF.   ETC. 

rights  of  citizen-s  in,  51. 
ANIMALS 

care    required    of    borrow^er,    1SS6. 

cruelty  to.    6n7-607g. 

damages  for  injuries  to.  3340. 

depositary  of,   1S34. 

1071 


INDJCX. 
[References  are  to  sections.] 

ANIMALS    (continued). 

game.     See  tit.     Game. 
right   to   take,    802. 

injury   to,   damages   for,    3340. 

killing  sheep  by  dogs.   3341. 

lien  for  keeping,   3051. 

lien  of  owner  for  service  of  stallion,  etc.,  3062. 

societies  for   the  prevention   of  cruelty   to.      See   tit.      Sctcieties 
for  the   Prevention    of   Cruelty   to    Children   and   Animals. 

wild,  property  in,  65fi. 
ANNUAI-  REPORT 

of  bridge,  ferry,  wharf,  chute,  and  pier  corporations,   .531. 

of   building   and    loan    associations,    645. 

of    consolidated    colleges,    etc.,    652. 

of   homestead    corporations,    565. 

of  land   and  building  associations.      See   tit.      Laud   and   Build- 
ing  Corporation.s. 

of   religious,    social,    and    benevolent    corporations,    596. 
ANNUITIES 

definition  of,   1357. 
ANNULMENT   OF   MARRIAGE.      See   tit.      Divoree. 
ANTECEDENT    WILL.      See    tit.      Wills. 

revivor    by    revocation    of   subsequent    will,    1296. 
ANTENUPTIAL   CONTRACTS 

as   to,   178. 
APPORTIONING   E.\SEMENTS.      See   tit.      Easements   and   Servi- 
tudes. 
APPORTIONMENT 

or  hire,  when,   1935. 

of  liens,   effect   of,   2912. 
APPRAISEMENT 

of  homestead,  1245,  1260. 

of   property    found,    1865. 
APPRAISERS 

report  of  and  contents  of,   1252. 

to  value  homestead,    1251. 

to  be  sworn,    1250. 

to   determine  value   and   divisibility,    1251. 
.APPRENTICE.      See    tit.      Master   and   Apprentiee. 
APPROPRIATION    OF    WATER.      See    tits.      Canal    Corporations; 
AVater-Right. 

maintenance  of  f^ow  of  water  in  stream  to  canal  takes,  1410b. 

water-right.      See  tit.      Water-Right. 

water-rights  may  be  acquired  by,   1410. 

1072 


INDEX. 

[References  are  to  sections.] 

APPITRTENAIVCKS 

deemed    fixtures,    when,    661. 

irrigation  stock  appurtenant  to  land,  when,  324. 
land,  to,   662. 

of  ship.      See   tit.      Ships  aud   Shippiug. 
pass   by   transfer  of  land,   476,    1084,   3540. 
ARBITRATION 

partner  may  submit  to,   2430. 

specific  performance  of  agreement   for  not  enforced,   3390. 
ARREST 

of  children   and   commitment   to  asylums,   etc.,    60Tg. 
ARTICLES   OF   INCORPORATION.      See    tit.   Corporationis. 
acknowledgment  of,   292. 
amendment  of,   362. 

assent    of    two-thirds    of    stockholders,    362. 
filing  copy  of  amended  articles,   362. 

original  and  amended   articles  together  contain   what,    362. 
penalty  for   neglect  to   file,   362. 
building  and  loan  association,   of,   what  to  contain,   633. 

amount    to    be    subscribed    must    be    fixed,    293. 
certain   corporations   to   state   further   facts   in   articles,    291. 
co-operative   agricultural,   etc.,   associations. 
amendment  of,    653r. 
debts  at   time   of,   653r. 
subscription   of,   653b. 
what   to   contain,   6.t3o. 
co-operative  corporation,"* 
amendments   of,    653v. 
what  to  contain,  653v. 
copy  of  must  be  filed,  where,   299[a]. 

corporate   name   must    not   be   duplicated   nor  closely    imitated, 
296. 
certificate  to  be   filed,    297. 
how  executed,  292. 

number    of    directors    and    ti'ustees,    increasing    and    diminish- 
ing,  290. 
lost,   restoration   of,    297a. 
prerequisites   to   filing  of,   294. 
prima  facie   evidence,  when,   297. 
restoration   of  lost,    297a. 
what  they  must  set  forth,  290. 
ASSESSMENT   OF   STOCK 

action    to    recover    assessments,    349. 

1073 


INDEX. 
[References  are  to  sections.] 

ASSESSMENT  OF  STOCK    (continued). 
action   to  recover  stock  .•lold 

as   to,   generally,   347. 
limitation  of  action,  347. 
proof    of   publication    and    sale,    348. 
delinciiieut   notice   of  asscssnieut 
as  to,  generally,  337. 
contents  of,   338. 
form  of,   337. 

jurisdiction  conferred  by,  340. 
publication    of,    339. 
sale  of  stock  at  auction,   341. 

disposition   of  stock  purchased   by   corporation,    344. 
extension    of    time    of   delinquent   sale,    notice    of,    345. 
highest  bidder  to   be  purchaser,   342. 
in    default    to   bidder    corporation    may    purchase,    3  43. 
how  levied,   331,  332. 

levy  of  assessment  while  old  assessment  unpaid,   333. 
not   invalidated    by    failure    to   make   publication    of   notice   as 

required,   346. 
notice   of  assessment,    335. 

delinquent  notice,  form  of,  337. 
form  of  notice,  335. 
publication  of  notice,   336. 
service   of  notice,    336. 
order  of,   w^hat  shall   contain,    334. 
power  to   assess,   limitation   as   to,   332. 
waiver  of  sale,  action  to  recover  assessments,  3  49. 
.ASSESSMENTS.     See  tit.      Taxes  and   As.se.s.snient.s. 
ASSIGNEE.      See    tit.      Assignment    for   Benefit    of   Creditors. 

takes   subject  to   rights   of   third   persons,    34G0. 
ASSIGNEE   OF   LESSEE 

remedies   of   lessor  against,    822. 
ASSIGNMENT.      See   tits.      Assignment    for   Benefit    of   Creditors; 
Conveyances. 
as  to  what  may  be  assigned.     See  tits.     Clioses  in  Action;  Per- 
sonal   Property. 
of   action    against    street    railway   for   penalty    for    overcharg- 
ing, 504. 
of  choses  in  action,  954. 

of  debt  carries  mortgage,  2934.  ,  ' 

of  debts  secured  by  mortgage,  2936. 
of   life   insurance   policy,    2764. 
of  mortgage  as  notice,   2933. 

1074 


INDEX. 
[References  are  to  sections.] 

.ASSIGNMENT    (continued). 

partner  may  not   make,   2430. 

warranty  of  written   instrument  sold,   17V4. 
ASSIGNMENT   FOR    BENEFIT    OF    CREDITORS 

assent    of   creditor    necessary    to    modification    of,    3473. 
assig^nee 

accounting  of,   3469. 

bond   of,    3467. 

compensation   of,    3471. 

protected   for   acts   done   in    good   faitli,    3472. 

takes   subject   to    right   of   tliird   persons,    3  460. 
as  to,  generally,  3449. 

certain   transfers  not  affected   by,   3451. 
conditions   of   disposal   and   conversion,    346S. 
debtor  may  execute,  when,   3449. 
exempt  property  not  affected  by,   3470. 
insolvency,   what   Is,    3450. 
instrument    of    assignment,    3458. 

compliance    with    statute    necessary    to    validity,    3459. 
inventory 

filing  of,   3463. 

nature   and   requisites   of,    3461. 

recording  of,  3463. 

where   more   than   one   assignor,    3464. 

verification  of,  3462. 
modification    of   assignment,    assent    of    creditor    neces.sary    tf), 

3473. 
of   real   property,    3466. 
what  debts  may  be  secured,  3452. 
when   assignment   void,   3457,    3465. 

as  to,   generally,    3457. 
ASSOCIATIONS   AND    SECRET   ORDERS 

not  insurance  corporations,   451. 
ATTACHMENT 

exemption   of  policy    of  life,   etc.,    insurance   from,   4  53k. 
lien    of   officer,    3057. 
of   mortgaged   personalty,    2968,    2972. 
ATTORNEY  FEES 

upon    foreclosure    of   mortgage.      See    tit.      I.iiiul    and    Iliiilding' 
Corporations. 
ATTORNEY-GENERAT> 

duty    of   when    alien    does    not   claim,    1405. 
may  inquire  into  corporations.  382. 
in-oceedings  by,  in  case  of  escheat,  1406. 

1075 


INDEX. 
[References  are  to  sections.] 

ATTORNEY   IN   FACT 

as  to,    1095. 

certificate  of  acknowledgment  by,   1192. 
form   of  certificate   of  acltnowledgment   by,    1192. 
how    must    execute    for   principal,    1095. 
officers    must    affix    their    signatures,    1193. 
to    convey    realty,    1095. 
revoking   power   of,    1216. 
ATTORNMENT 

by  tenant   to   stranger,   effect   of,   1948. 
to  landlord  on   grant  of  rent,   etc.,   1111. 

AUCTION 

auctioneer's  memorandum,   1798. 

bids   by   seller   or   agent,    when    void,    1797. 

bid,  withdrawal,  1794. 

by  bidding,   1797. 

defined,   1792. 

delinquent  stock,  sale  of  at,  341. 

memorandum   of  auctioneer,    179S. 

pledge,    sale   of   at,    3005. 

sale   by,    1792. 

complete,    when,    1793. 

under    written    conditions    modifying,    1795. 
statute  of  frauds,   1624. 
under  written   conditions,   1795. 
withdrawal  of  bid,   1794.  ' 

without  reserve,  rights   to  buyer,   1796. 
AUCTIONEERS.      See    tit.      Agents. 
authority    from   seller,    2362. 
authority    from   bidder,    2363. 
memorandum   by,  as   to,    179S. 

AUTHOR 

property    of   in    writings,    980-985. 
AUTHORITY 

joint,  how  construed,   12. 
AUTOMOBILE 

franchise   for  constructing  road  for,   524. 
AVERAGE.      See    tit.      General    Average. 
AVOIDING  TOULS 

penalty  for,  519. 
AVUUSION.      See   tit.      .\coretlon. 

distinction    from    alluvion.    1015. 

islands.     See   tit.     Islniid.s. 

sudden  removal  of  bank,   l(il5. 

1076 


INDEX. 
[References  are  to  sections.] 

AWARD.      See    tit.      Arbitration. 

BADGKS 

officers  of  railroads  to  wear,   488. 

to    be    worn    by    agents    of    society    for   prevention    of   cruelty, 
etc.,    607f. 
HAGGAGK.      See     tits.      Carriers;     itailroatl     C'oriioratious. 

bicycle  as,   2181. 

carried 

and  delivered  how,   2183. 

at   owner's  risk,   when,   2183. 

check   to   be   affixed   to    by    railroad,    4  79. 

checking,   generally,    2183. 

consists    of   what,    2181. 

damages   for   failure   to   check,    479. 

liabilky   for,   2182. 

lien  of  carrier  on,   2191. 

obligation   to  carry,   2180. 

obligation    to    carry    on    stage,    2180. 

sales   of   by   Innkeeper   for   storage,    1862. 

to  be  checked,   479. 

uncliecked,  carried  at  (owner's  ri.sk,   2183. 
BAIL.      See   tit.      ludemnity. 

as   to  wliat  is,    2780. 

how    regulated,    2781. 
BAILED  HOPS 

tare   on,    995. 
BAILSlEiNT.      See    tits.      Depo.sit;    Depositary;    Hiring;    Loan    for 
Use;   Wareliojiseniaii. 

gratuitous  depositary,  creditor  is,  when,   150.5. 
BANK.      See    tits.      Banking   Corporations;    Snxings   Banlcs. 

book    and    notice    to    directors    and    stockholders,    312[a]. 

lien   of  banker,   3054. 
BANK    ASSOCIATION.      BanlwiiiK    Corporations. 
BANK   COMMISSIONER 

land   and  building  corporations   to   report   to,   G14. 
subject  to,    647. 

report   of,    644. 
BANK-NOTES.      See     tit.       NeKOtialile     Instruments. 

as   to,    3095,   3261. 
BANKER 

lien    of,    3054. 
BANKING   CORI'OBATIONS 

as  to,   300. 

capital   stock,   of,   3<i0. 

copy   of  proceedings   of  meeting,   300. 

1077 


INDEX. 
[References  are  to  sections.] 

BASTARDS 

adoption   of,   227,   230. 
cu-stody  and  control  of,  200. 

legitimized   by    subsequent   marriage    of   parents,    215. 
proof   of   illegitimacy,    195. 
BENRFIT   CORPORATIOX.      See   tit.      Reli&lous,   Social,   and   Be- 
nevolent  Corporations. 
cumulative  voting   of,    307. 

directors    or    trustees,    number    of,    290,    305. 
exempt  from  insurance   laws.   451,    453p. 

fraternal  societies  exempt  from  insurance  laws,  451,  453p. 
insurance   associations,   452a,   453. 
insurance,   mutual  life,   etc.,   437,   452. 
record    to   be   open    to   inspection,    378. 
BENEVOLEjVT    ASSOCIATIOXS.      See    tit.      Benefit    Co-operative 

Society. 
bequests  to,   limitation  of  power  to  make,   1313. 
incorporation    of,    592a-604. 
insurance   associations,  452a,   453. 
BEXEVOI.EXT   CO-OPERATIVE    SOCIETIES 

are   corporations   within   the   statute,    451. 
BEaUESTS  AlVD  DEVISES.      See   tit.      Wills. 
BICYCLE 

as    baggage.      See   tit.     Bagg:ase. 
franchise  for  constructing  paths   for,   524. 
is   baggage   or  luggage,   2181. 
BIGAMY 

ground   for   annulling   marriage,    82. 
BILLS    OF    EXCHAXGE.      See    tits.      Foreign    Bills   of   Exchange: 

Xegotiable  In.striinients. 
acceptance 

as   to,    generally,    3193. 

by   separate   instrument.    3196. 

cancellation    of  acceptance,    3198. 

holder  entitled  to  acceptance  on  face  when,   3194. 

how^  made,  3193. 

promise  to  accept  equivalent  to  acceptance,  wlien,  3197. 

what   is   admitted   by,    3199. 
acceptance  or  payment   for  honor 
as  to,   generally,   3203. 

holder  of  bill   bound  to,   when,   320  4. 

ho-w    enforced,    3206. 

how  made,   3205. 

notice  of  dishonor   not   excused   by,   3207. 

when   may    be   made,    3203. 

1078 


INDEX. 
[References  are  to  sections.] 

BILLS  OF  EXCHANGE    (continued), 
bill    in   parts   of  set,    3173. 

converted    into   promissory    note,    when,    3246. 
days  of  grace,   not  allowed,   3181. 
definition  of,   2171. 
drawee   in    case    of    need,    3171. 
form  a,nd  interpretation  of,  3171. 
nuist  be  in  a  set,  3174. 
presentment  for   acceptance,    3185. 

how  made,   3186. 

to  be  made  to  drawee   in   case   of   need,   when,   3188. 

to  joint  dra-wees,  3187. 

when   may  be  presented,    318,5. 

when  must  be  made,   3189. 
presentment   for   payment,    3212. 

effect  of  delay   in   certain  cases,    3213. 
effect   in    other    cases,    3214. 

excuse  for  presentment,  as  to,  3218. 
delay  when   excused,   3219. 

presentment   and    notice   when    excused,    3220. 
presentment  when  excused,  3218. 
presentment   of   part    of   set,    3173. 
rights    and    obligations   of   drawer,    3177. 
when    not   accepted,   where   to   be   made,    3211. 
where  payable,    3176. 

where  payable  at  a  particular  place,   3212. 
BII.I.   OF   liADIXG 

conditions    in    limiting    liability,    2176. 
consignee   entitled   to,    2130. 
definition    of,    2126. 

delivery    according    to    exonerates    carrier,    2131. 
effect   of   accepting   from    carrier,    2176. 
effect  of  on   right,  etc.,  of  carrier,   2129. 
negotiability   of,   2127,   2128. 
refusal   to   give,   effect   of,   2130. 

surrender  of  before  delivery,  carrier  may  require,   2132. 
to   "bearer,"   2128. 
to  be  given   to  consignor,   2130. 
BISHOP 

of   religious   corporations.    602. 
BLASTING   ROCK.      See   tits.      NeKliKOiu-r:   IViii.xnn<-o. 
BOARD    OV    TRADK 
assessments,   592d. 
as  to,   286. 
by-laws  of,    .'i92c. 

1079 


iNDEX. 
[References  are  to  sections.] 

BOARD  OF  TRADE    (continuecl ). 

capital    stock   of,    592. 
certificate  of,  592. 

formation,  organization,  and  powers  of,  501. 

power  of  trustees,  directors,  and  executive  committee,   592a. 

power   to   acquire,    use,    and    sell   property,    592b. 

pre-existing  corporations  may  become,  592e. 

riglits    and    liabilities    of    stockholders,    592. 
BOARDING-HOUSE,  KEEPER  OF.     See   tit.   Innkeepers. 
BODILY  AILMENTS.      See   tit.      WilLs. 
BOLTS.      See    tit.      Loprg,er*.s    lien. 

lien   on,    3065. 
BONDS.      See    tits.      Guaranty;     Inden;nity;     SuretyNliip. 

as   to,   3261-3268. 

cemeteries  may   issue,   611. 
•   corporations,  issue  of  restricted,   359. 

negotiable,  3095,  3261. 

non-residents,   on   transfer  of  stock  to,   326. 

of   railroads.      See   tit.      Railroad   Corporation.*;. 

savings   and  loan   corporations   may   invest    in    what,    574. 

when    required    on    transfer   of   certificate   of   stock,    326. 
BOOKS    OP    RECORD 

as   to   generally,    1171. 
BORROWER.     See    tits.      Hiring;;    Loan    for   Use. 

care  required  of,   1886. 

degree  of  skill  to  be  exercised.  1888. 

of  animal  borrowed   for   use,   1887. 

to   bear   expenses,   when,    1892. 

to   repair  injuries,   when,   1889. 
BOTTOMRY.      See    tit.    Re.><pondentia. 

definition   of,   3017. 

interest,  rate  of,  3022. 

lender,    rights   of  w^hen    no    necessity   for   bottomry,    3023. 

lien    of,   how   lost,    3027. 

loan    becomes    due,    when,    3026. 

master  may  hypothecate   freight   money.    3021. 

master   may    hypothecate    ship,    3019,    3020. 
when   owner  cannot  be  reached,   3020. 

owner   may   hypothecate   ship,   301S. 

preference   of  lien    over   other   liens,   3028. 

priority    of   lien,    3029. 

rate  of  interest,   3022. 

rights  of  lender  when   no  necessity  for  bottomry,   302H 

stipulation   for  personal   liability   void,    3024. 

when   loan   becomes  due,   3026. 

1080 


INDEX. 
[References  are  to  seetions.] 

BOUNDARIES 

acquiescence   in   line,   prescription   b\',    841. 
boundaries  by  ways.     See  tit.      Ways,  Boundary  by. 

as   to   generally,    831. 
by   water.      See    tit.      Winters,   Boiiiulary    by. 

as  to  generally,  830. 
fence.  See  tit.  Feuoe. 
lateral  and  subjacent  support.     See  tit.   Lateral  Support. 

as  to  generally,  832. 
line  trees,   834. 
rights   of   owners   in,    829. 

trees    whose    trunks    ai-e    wholly    on    land    of    one.       See    tit. 
Tree.s. 
BOA'S.      See   tit.      Males. 

BREACH    OF    PROMISE    OF    MARRIAGE.      See    tit.      Contraets. 
BRIDGE   CORPORATIONS 

as   to,    generally.    .j2S-531. 
BRIDGES.       See     tit.     Bri(l)3;e.s,    Ferry,    Wharf,    Chute    au»l    Pier 
Corporation. 
duty  of  wogan   roa^l   corporation   to  construct,   etc.,    514. 
to   be  constructed   by   water  and   canal   corporations.      See   tit. 

Water   and   Canal   Corporations. 
water   companies,    duty    to    maintain,    551. 
BRIDGES     AND     FERRIES.      See     tit.      Bridse.s,    Ferry,    Wharf, 
Chute,  and   Pier  Corporations. 
on    line    of    toll    road.      See    tit.      Wai^on    Roac    Corporations. 
BRIDGES,    FERRY,    WHARF,    CHUTE,    AND    PIER    CORPOR.4- 
TIONS 
annual  report  to  be  made  to  supervisors,   530. 
by  whom   to  be  made,   530. 
damage  for   failure   to   report,    530. 

duty  of  district  and  city  attorneys  in  relation  to,   530. 
publication   of  report,   530. 
what  report   to  contain.   530. 
corporate  existence  ceases,  when,  529. 

statute   applies   to   natural   persons   and   corporations,    531. 
toll    not   to   be   collected    without    authority,    528. 
BROKER.      See    tit.      Agency. 

real   estate,   statute  of  frauds  applies  to,   1624. 
BUILDING   CORPORATIONS.      See   tit.      Land   and   Building  Cor- 
porations. 
BUILDING   AND   LOAN    ASSOCIATIONS 
annual    report    of,    645. 
arrears  in  payments,  defaults  and  forfeitures,   639. 

1081 


INDEX. 
[References  are  to  sections.] 

BUILDING  AND  LOAN  ASSOCIATIONS    (continued), 
articles   of   incorporation,   what   to   contain,    633. 
bonds,  investments  in  and  loans  upon,   647. 
capital  stock  of 

as  to   generally,   634. 

form   of   certificate,    634. 
control  and  supervision  of  by  state,   644. 
defaults,    639. 
definition,   648. 

demands  unpaid  for  a  year,   receipts  to  be  applied   to,    6-? 2a. 
directors   from   holders   of   guarantee   stock,   634. 
dividend   fund,    641. 
dues  of 

as   to  generally,  634. 

installment    stock,    634. 

paid   up   stock,    634. 
fees,    634. 

fines,  634.  * 

foreign 

agents   of,    646. 

deposit  by,  646. 
forfeitures,   639. 
formation   of,   633,   64  8a. 
free    shares,    retiring,    635. 
guarantee  fund,   646. 
guarantee   stoelv 

as    to    generally,    63  4. 

directors  from  holders  of,   634. 
installment  stock,   634. 
interest,    638. 
investments 

in   and  loans  upon  bonds,   647. 

of  funds  in  mines  unlawful,   737. 
loans 

as   to   generally,    637. 

of   funds   on   mines   unlawful,   637. 

on   own   guarantee  stock   unlawful,    637. 

unIaT«-ful 

borrowings,    637. 

loan  on   own   guarantee  stock,   637. 

to  invest  or  loan   funds  to   mine,   637. 

upon    bonds,    647. 
losses.    641. 

maturity    of   stocks,    636. 
membership,    643. 

1082 


INDEX. 
[References  are  to  sections.] 

BUILDING  AND   LOAN  ASSOCIATIONS    (continued). 

organization   of,   633. 

paid-up   stock,    634. 

penalty,   637. 

powers   of,    633. 

profits    and    losses,    641. 

prohibition,    637. 

purchase   of  real  estate,   640. 

receipts  of  to  be  applied  to  demands  unpaid  for  a  year,   642a. 

reincorporation  of  existing  associations,  648a. 

reserve   fund,   641. 

retiring  free  shares,  635. 

repayment   of  loan,    638. 

report 

all   statements   in   perjury,   when,    64.5. 

annual,    645. 

further   reports,    645. 

security,    638. 

securities   may   be   substituted,    646. 

state  supervision   and  control,   641. 

statu.s   of  present   contracts,    64  8._ 

stock,   maturity   of,   636. 

substitution    of   securities,   646. 

withdrawals,   642. 
Bl'IiLS.      See   tits.   Animals;   Damages. 

lien  for  service  of,  3062. 
BIRIAI..     See  tit.      Cemetery. 

burned  bonds,  of  corporation,  proceedings  to   restore,   329. 

right  of,   801,   802. 
HI  SINESS.     See    tit.      Good-Will. 
BUSINESS    ASSOCIATION.      See    tit.      Business    Corporations. 

co-operative,    653b-653k. 
BI  SINESS    CORPORATION.      See    tit.      Business    Assoeiation. 

co-operative,    6o2-653a. 
Bl'SIXESS   DAYS.     See   tit.      Holidays. 

what  are,   9. 
BV-I-A\VS    OF    CORPORATIONS,      See    tits.      Clianil>er    of    Com- 
nieree,  Boards   of   Trade,   Kte. :   ColleKes   and   Seminaries;   Co- 
o|H'rative  Business  Associations. 

adoption   of,  when,   how  and   by   whom,   301. 

amendment  of  by-laws,   how  made,   304. 

co-operative    agricultural,     etc.,     associations,     what     to     con- 
tain, 653p. 

co-operative'  coiporations,  what  to  contain,   653w. 

1083 


INDEX. 
[References  are  to  sections.] 

BY-LAWS   OF   CORPORATIONS    (continued). 

of    municipal    corporation.      See    tit.      Municipal    Corporation. 
of    mutual    benefit    and    life    associations,    what    may    provide, 

453. 
of     mutual     life,     etc.,     insurance     corporations,     may     limit 

amount   of  stock,   etc.,   445. 
record  of,   304. 

when,   how,   and   by   whom   adopted,   301, 
CAIVAI.    CORPORATIONS 
as  to,  generally,  548-552. 

maintenance     of    flow     of    ^vater    in     stream     to    canal     takes, 
141Db. 
CAIVCELATION 

and  alteration  of  contracts,  as  to,  generally.   1699-1701. 
in  part,   3414. 

of  acceptance   of  bill   of   exchange,    3198. 
of   deed    does    not    revest    title.    1058; 
of    instruments,    in    general,    3412,    3414. 
of  will,   1292,  1293. 
recording  of,   3412. 
CANCELATION    OF    INSTRVMENTS 
cancelation    in    part,    when,    3414. 
instrument   obviously  void,   3413. 
may   be    ordered,    when,    3412,    3414. 
CAPACITY    TO    CONTRACT.      See    tit.      Contract. 

of   idiots.      See   tits.      Idiots;   Persons   of   Iiisoiinil    >tinci. 
of    intoxicated    person.      See    tit.      Intoxication. 
of  minors.      See  tits.      Infant;  Minors. 
as  to,  1557. 
CAPITAIj    STOCK.      See    tit.      Corporation. 

assessment   of.      See    tit.      Assessment   of   Stock. 
assessment   of  railroads,    455. 

minimum   required   to   be   paid    in    before    incorporation,    290a. 
of  railroad  corporation.      See  tit.     Railroad  Corporations. 
transfer   of   railroad   stock,    455. 
not  valid  except,   455. 
CARE.      See  tit.      NegrHgence. 
degree   of,   16. 
great 

borrower   to    use,    1886. 

carrier  of  messages  for  reward,   to   use,    2161. 
employee,   for  his   own  benefit,   to   use,   1979. 
shipmaster   to   use,   2043. 
ordinary 

carrier   of  property   for   reward,    2096. 

1084 


INDEX. 
[References  are  to  sections.] 

CARE    (continued). 
ordinary    (continued). 

carrier  of  persons  gratuitously,   2090. 

depositary    for   hire,    to    use,    1852. 

employee   for   reward,    to   use,    197S. 

hirer,  to  use,  1928. 

voluntary    agent,    to    use,    2078. 

trustee,    to    use,    2259. 
slight  /' 

gratuitous  carrier  of  property   to   use,   2114. 

gratuitous  depositary,  to  use,  1846. 

gratuitous  employee,  to  iise,  1975. 
utmost 

carrier  of  messages   by    telegraph,   to   use,   2161. 

carrier  of  persons  for  reward,  to  use,   2100. 
CARELESSNESS.     See    tit.      lVes:Tis;eiioe. 
CARRIAGE 

common    carriers.      See    tit.      Coniiiiini    Carripr.**. 
of  messages.     See  tits.  Carriers  of  >I«»ssaso.s;  Telegrams. 
of  persons.      See   tit.      Carriers   of  Persons. 
of  property.      See   tit.      Carriers   of  Property. 
CARRIAGE   IIV   GENERAL,.      See   tit.  Common   Carrier. 
carriers  by  sea,   rights  and  duties,    2088. 
contract   of  carriage,   2085. 
gratuitous    carriers,    obligations    of.    2089. 

who  has  begun   to  carry,   2090. 
kinds   of  carriers,   2086. 

inland   carriers,   2087. 

marine    carriers.    2087. 
CARRIER 

act  of  God  relieves  of  liability,   2194. 
baggage.     See  tit.     Bajj^aKe. 
bill  of  lading.     See  tit.     Rill  of  t.iuUtiK. 

common    carrier.      See    tit.'?.    Common    Carriers;    Common    Car- 
riers of  Persons;   Common    Cjirriers   rf   Property. 

defined,    2168. 
compensation.   2173. 

payment  and  refusal  of,  2173. 
connecting,  delivery  to,  2201. 
consignee   defined,    2110. 
contract    of   carrier,    2085. 
damages   for   breach    of   obligation    to   deliver,    3316. 

for  breach   of   obligation    to   receive   goods,    3315. 

for  delay,  3317. 

1085 


INDEX. 
[References  are  to  sections.] 

CARRIER   (continued). 

damages  for  breai-h  of  obligation  to  deliver   (continued). 

for  non-delivery,   3316. 

for    refusal    to    receive    freight,    3315. 
delay   in   carriage   of   freiglit,    liability   for,    2196. 
delays,  generally,  2104. 
deliverj- 

exonerates  carrier,  when,  2131. 

in  part,  apportionment  of  freight,   2140. 

manner   of,    2118,   2119. 

not  made,  carrier  may   exonerate  himself,   how,   2121. 
obligations   of  carrier   on,    2120. 

place   of,   2118,    2119. 

surrender  of  bill  of  lading  may  be  demanded  before,  2132. 

to   connecting  carriers,    2201. 
duty  of  carrier  of  persons.      See   tit.  Coniniou  Carriers  of  Per- 
sons. 
ejection   of  passengers.      See  tit.   Ejection   for  Xon-Paj-nient  of 

F'are. 
exemption  from  liability  where  negligent,   none,   2196. 
expense   of  transportation   of   things   sold,    1755. 
fare.     See   tit.     Pare, 
freigltt 

defined,    2110. 

not   accepted,   to   be   stored   by    carrier,    2121. 

not  delivered,   obligation   of  carrier,   2120. 

obligation    to    accept,    2169. 
freightage 

apportionment   of,    2140. 

according  to  distance,   2142. 
by   contract,    2140. 

carriage   further    than   agreed,    2143. 

consignee  liable   for,   when,    2137. 

consignor  liable  for,   when,   2138. 

defined,    2110. 

for  natural  increase  of  freight,  2139. 

lien    for,    2144. 

marine  insurance.      See  tit.      Marine  Insurance. 

sale    of   perishable   property    for,    2204. 

to  be  paid,   when,   2136. 
general    average    adjustment.      See    tit.      General    Average. 
gratuitous    care    required    of.      See    tit.      Care. 
inland,   what   is,    2087. 
insurable    interest   of.      See    tit.      Insurable    Interest. 

as  to;  2548. 

1086 


INDEX. 
[References  are  to  sections.] 

CARRIER    (continued). 

jettison.      See   tit.     Jettison, 
liability    for   negiigrence 

cannot  be  relieved  from,   2175. 

limiting  of,  generally,   2174-217^;. 

when  limitation  on  void,   217ij. 
lien 

for   freightage,   2144. 

limitation  on,  without  notice  of  value,   2200. 

on  baggage,  2191. 
loss  of  freight 

liable  for,  when,   2194. 

no   liability   for^   when,   2194. 
loss    of    property    or    money,    liability    for,    2177. 
loss,   proof   of,    2202. 

loss    through    negligence,    liability,    2195. 
marine.      See   tit.      Ships   anrt   Shipping. 

negligence   of,   cannot   be   exempted    from   by   contract,    219.' 
notice 

carrier   to   give   for   non-delivery,    2120,    2121. 

of  value  of  freight,   to   be   given,   2200. 
obligations.      See   tit.      Obligations. 

limited,    how,    2174-2176. 
of   messages.      See   tit.      Carriers   of   ^lessages. 
passengers.      See   tit.      Passengers. 

damages   for   refusal    to    receive,    3315. 

duty   to,    generally,    2100. 

ejection  of.      See  tit.   Ejection   for   Xoii-Paynieut   «»f  Fare. 

entering   train   without   payment    of    fare,    21S9. 

safe   and   fit   vehicles.      See   tit.      Vehicles. 

seats  to  be  provided,   21S5. 
penalty    for    failure    to    observe    schedule    time,    2172. 
perils  of  sea.      See  tit.     Perils  of  Sea. 
preferences  may  be  given,  when,  2171. 
preferences   not    to   be    given,   when,   2170. 

property 

care  required  of,   2114. 

conflicting  orders  of  consignee  and  consignor,  211fi. 

must   obey   directions,   2115. 
rate   of   speed,    2104. 
rules    and    regulations,    2186. 
sale   of  perishable   freight,    2204. 
schedule   time    must    be    observed,    2172. 
state    may    be    given    preferences,    2171. 

1087 


INDEX. 
[References  are  to  sections.] 

CARRIER    (continued). 

tickets.       See    tit.       Tickets. 
time   for   running   must   be   observed,    2172. 
United  States  may   be  given  preferences,   2171. 
value   of   articles   to   be   stated,   when,    2200. 
vehicles.     See  tit.     Vehicles. 

not  to  be  overcrowded,  2102. 
written   contract  of,   2176. 
CARRIER'S   DELAY 
damages  for,   3317. 
CARRIER'S    OBLIGATION    TO    DELIVER 

breach   of   damages   for,   3316. 
CARRIER'S    OBLIGATION    TO    RECEIVE    GOODS 

breacli   of  damages    for,    3315. 
CARRIERS  OF  MESSAGES   (other  than  telegraph  and  telephone 

companies).     See  tits.     Telegraph  and  Telephone  Companies. 
degree  of  care  and  diligence  required,   2162. 
duty  to  deliver,  2161. 
CARRIERS  OF  PERSONS,     See  tit.  Common  Carriers  of  Persons. 
gratuitous  carriage,   2090. 

degree  of  care  required,  2096. 
carriers  for  regard 

as   to   who  are   passengers.      See   tit.   Passengers. 

delays,  2104. 

general  duties  of,   2100. 

negligence   of.      See   tit.   Negligence. 

overloaded  vehicles  prohibited,   2102. 

rate  of  speed,   2104. 

treatment  of  passengers,   2103. 

vehicles.      See   tit.   Vehicles. 

bound  to  provide  safe  and  fit,   2101. 
not  to  be  overloaded,  2102. 
CARRIERS   OF   PROPERTY 

bill   of  lading.      See   tit.   Bill  of   Lading. 

as  to  generally,  2126-2132. 
care  and  diligence  required   of,   2114. 

a"s  to  generally,  2114. 
conflicting  orders  by  consignor,  2116. 
consignee  not  accepting,   disposition   made   of  freight. 
delivery  of  freight 

as  to  generally,  211S. 

notice  when   not  delivered,   2120. 

place   of  delivery,   2119. 

stoppage  in   transitu.      See   tit.   Stoppage   in   Transitu. 

when  consignee  does  not  accept,   2121. 

1088 


INDEX. 
[References  are  to  sections.] 

CARRIERS  OP  PROPERTY  (continued), 
deviation  from   route,   2117. 
freightage.     See  tit.  Freislitase. 

as   to   generally,   2136-21-14. 
general   average.      See  tit.   General  AverjiRe. 

as   to   generally,    2148-2162. 
general  definition,  2110. 
notice  wlien  freight  not  delivered,  2120. 
obligations    of,    2114. 
stowage,   2117. 

to  obey  directions  of  sliipper,   2116. 
CAUSA  MORTIS.     See  tit.  Gitt.s. 

CEMETERIES.      See    tit.    Cemetery    Corporations. 
burial   rights   of  servant,   801,   802. 
disposal  of  lots,  598. 
establisliing  by  corporation,  595. 
CEMETERY  CORPORATIONS 

alienability  of  lots  revived   how,   613. 

annual  report  of,   609. 

l)onds  may  be  issued,  611. 

liurial  lot  inalienable,  wlien,   613. 

improvement   in    grounds,    611,    612. 

inalienability  of  lot,  when,  613. 

land  that  may  be  held  by  and   disposed  of,   60S. 

must  be  surveyed  and  subdivided  into  lots,  608. 
lot  owners  previous  to  purchase  to  be  members,  614. 
lot,  sale  of  after  disinterment,   613. 
lots,  rights  and  interests  in,  613. 
lots,    surveying,   etc.,    608. 
may  hold  personal  property  and  to  what  amount,  610. 

how  disposed  of,  610. 
may  issue  bonds  to  pay  for  grounds,   611. 

proceeds  of,   how  disposed   of,    611. 
may  sell  lands,  when,   615. 
may  take  and   hold  property   in   trust,    616. 

application  of  income,  616. 

investment   of  proceeds   of   income   in    what,    616. 

purposes    for    which    may    hold,    616. 
may   take  and  hold   title  to  what  and   how,   612. 
members   eligible   to  vote  and   hold   office,    609. 
personal   property,  holding  and  disposing  of,   610. 
property  held  In  trust 

investment  of  proceeds,   616. 

proceeds  to  be  used,  how,  611,  616. 
sale   of   lands,   conditions   and   rcslriftions,   60S. 

•^5  1089 


INDEX. 
[References  are  to  sections.] 

CEMETERY    CORPORATIONS     (continued). 

sale  of  lots,  proceedings  on,  615. 

who  may  not  be  buried  in  lot,   613. 
CERTIFICATE 

false,   liability  of  officers.   316. 

fee  of  recorder  for  recording,   1165. 

mortgage-participation,    made    lawful    investment     for     trust 
funds,  etc.,   453ff. 

of  autliority  required  by  mortgage   insurance  company,   453cc. 

of  corporate  existence,  extending  by,  401. 

of  deposit,   negotiable,    3095. 

non-negotiable,   when,    3095,    3621. 

of  discharge  of  mortgage,  2939. 

of  indenture  of  apprenticeship,  275. 

of  incorporation,  secretary  of  state  to  issue,  296. 

of  marriage,  69a,  73,  79. 

of  master  of  ship  in  favor  of  seamen,  2059. 

of  partnership.      See   tit.   Partnersbip,   General. 

of  partnership  under  fictitious  name,  2466-2477. 

of  residence  of  corporation,  when  to  be  filed,  1163. 

of  restoration  of  lunatic,  evidence   of  legal  capacity ,   40. 

of  savings  and  loan,   576. 

of  stock.     See  tit.  Cnrporatlou. 

to   seamen   of   efforts   to   save  cargo,   etc.,   2059. 
CERTIFICATE    OF    ACKXOAVI.EDGMEXT.       See     tit.     AvkiwnAl- 
edsiiient. 

form  of  eertilicate   of  aoknowltdgmont.      See  tit.  Acku«c\vledg- 
uient. 
CERTIFICATE  OF   DEPOSIT 

as  to  generally,  326S. 
CERTIFICATE    OF    MARRIAGE.      See    tit.    Marriage. 
CERTIFICATE   OF   SHERIFF'S   SALE.      See   tit.    Sheriff's  Certifi- 
cate of  Sale. 
CERTIFICATE  OF  STOCK 

afflda.vit  or  bond  required  before,  wlien,  326. 

how  issued,  323. 

how^  transferred,  324. 

irrigation  stock  appurtenant   to  land,   324. 

lost,  etc.,  certificate,  procedure  for  securing  new,  32S. 

married  woman  may   transfer,   325. 

shares  of  personal  property,   324. 
CERTIFIED   COPY 

of  recorded  instrument  may  be  recorded,  121S. 

1090 


INDEX. 
[References  are  to  sections.] 

CHA.TIBER  OF  COMMERCIC,  BOARDS  OF  TRADE,  MECHANICS' 
lAfSTITUTES,   ETC. 

as   to,   generally,    591-592e. 

assessments,  power  to  levy  and  collect,   592d. 

business  of,  591. 

by-laws  of,   592c. 

capital  stock  and  certificates  of,   592. 

rights  and  privileges  of  stockholders,  592. 

executive  committee,  powers  which  may  be  conferred  on,  592a. 

formation    of,    591. 

meetings    of,    how    called    and    conducted,    592c. 

organization  of,    591. 

pfiwer  which  may  be  conferred   on   tlie   trustees,   etc.,   592a. 

powers   of,   591. 

to  acquire,  sell,  and  use  property,  592b. 
to  levy  and  collect  assessments,   592d. 

pre-existing  corporation  may  have  benefit  of  title,   592e. 
certificate,  execution,  and  contents  of,  592e. 
notice   of  meeting  and   object   to   be  published,    592e. 

rights  and  privileges  of  stockholders,  592. 

trustees,  powers  which  may  be  conferred  upon,   592a. 
CHANCERY  COURTS.     See  tits.   Equity;   Speoific  Rfli:>f. 
CHANGE  OF   NAME.     See   tit.   Corporations. 

conveyance  of  real  estate  on,  how  made,  109G. 
CHARGE.      See   tit.  Privileged   Coniinuiiicsition. 
CHARITABLE  BEQUESTS.      See    tit.   Wills. 
CHARITABLE  USES  AND  BEQUESTS 

limitation  as  to  time  and  amount,   1313. 
CHARITABLE   USES   AND  TRUSTS.      See    tits.   Trusts;    I  ses   ami 

Trust.s. 
CHARTER  PARTY.     See   tit.   Ships  and   SliIppiiiK. 

definition  of,  1959. 

insurable    interest,    2665. 

shipmaster  may  enter  into,   2376. 

ship's   manager   may   enter   into,   2.'?SS. 
CHASTITY 

want  of,   avoids   promise   o{   marriage,    62. 
CHATTEL  INTERESTS 

what   are,    765. 
CHATTELS,  REAL 

estate  for   life  of  third   persnn    is   not,   766. 

what  are,  7  65. 

1091 


INDEX. 
LRefeiences  are  to  sections.] 

CHECKS.     See    tit.   ]Veso<i!<l>le   In.struiueuts. 

time  for  presentment,   rules   applicable  to  checks,   3255. 
CHILD.     See   tit.   Parent   and  Child. 

enventre  sa  mere,   29,  698. 

property  of,  parents  control   over,   202. 
allowance  out  of  for  maintenance,   201. 
takes  under  will,  when,  1339. 

to  maintain  parent,  ^'hen,   206. 

unborn.     See  tit.  ITnborn  Child. 

who  may  be  arrested  and   committed   to  asylums,   etc.,    GOlg.' 
CHILDREN.      See    tits.   Parent   and   Child:   Succession;   Wills. 

custody   of  in  actions  for  divorce,   138. 

legitimacy  of,  born  in  wedlock,  193. 
posthumous,   698. 

societies  for  the  prevention  of  cruelty  to.     See  tit.   Societies 
for  the  Prevention  of  Cruelty  to   Children  and    Animals. 

unprovided  for  by  will  to  succeed,  when,   1307. 
CHILDREN   OF  ANNULLED   MARRIAGE.     See  tit.   Divorce. 
CHOSES  IN  ACTION.     See  tit.  Personal  Property. 

definition    of,    953. 

judgment  is,   954. 

survivorship,    95  4. 

transfer  of,  954. 
CHURCH.      See   tit.   Religious   Corporations. 

seat  at,  right  to,   801,   802.    . 
CHUTE.      See    tit.    Bridges,   Ferry,    AVharf,    Chute   and    Pier   Cor- 
porations. • 

as   to,   529,   530,   531. 
CIRCUS.      See   tits.   Civil   Rights:   Places  of  Public  Amusement. 

refusing  admission   to   unlawful,   when,    53. 
CITIZENS 

rights  of  in  places  of  public  accommodation  or  amusement,  51. 
CITY.      See    tits.    Municipal   Corporations;    AVater   Companies. 

water  companies,  contract  with  to  furnish  water,  54  8,  549. 
CITY  LOTS.     See  tit.  Leases  of  City  Lots. 

lease  of  for  over  ninety-nine  years  void,  718. 

property    of    minor    or    incompetent,    or    municipality    for    ten 
years,    only,    718. 
CIVIL  CODE 

act  establishing,   1. 

actions  pending   not   affected   by,    6. 

cited,   how,   21. 

construed   liberally,    4. 

continuation  of  statutes  and  common  law  by,   5. 

definition  of  terms,  14. 

1092 


INDEX. 
[References  are  to  sections.] 

CIVIL,  CODE    (continued), 
divisions  of,   1. 

does  not  affect  pending  actions,    6. 
Iiow   cited,   21. 
not  retroactive,   3. 

private  statute,  how  affected  by,  20. 
repeal  of  otlier  statutes  by,  20. 
retroat'tive   effect   of 

not  as  to  wills,  1375. 

not  generally,  3. 
rules  of  construction.      See   tit.   Rules   of  Construetioii. 
takes  effect,  when,  2. 
terms  defined,  14. 
title,  1. 

vested  rights  not  affected  by,  6. 
Civile  LAW  DOCTRINE 
ascending  line,  1391. 
collateral  line,   1390. 

degrees   of,    1393. 
descending  line,   1391. 
direct  line,   1391. 

degrees  of,   1392. 
CIVIL,    RIGHTS 

discriminations  prohibited,  52. 

of  citizens   in  places  of  public  accommodation   or  amusement, 
51. 
CLAIM   AlVD  DELIVERY.      See  tit.    Replevin. 
gold  coin,  judgment.      See  tit.   Judgment. 
judgment  for  delivery,  3379. 

when  holder  may  be  compelled   to  deliver,  33S0. 
CLAIM    NOT  DUE 
no  lien  for,  2S82. 
CLAIMANT.     See  tit.  Appropriation  of  Water. 

of  waters,   1420. 
CLERK   OF   COUNTY 

acknowledgments,    may   take,    11  SI. 
articles   of  incorporation  to  be   filed,  with,   29G. 
certificate  of  special  partnership  to  be  filed  with,   2479. 
duty  of 

recording   marriage   licenses,    69. 

to  keep   register   of  partnership   names,    2470. 

where    acknowledgment   taken    before  justice    of    the   peace, 
1194. 

may   take  acknowledgments,   1181. 
notice  of  dissolution   of  special   partnership,    filing  with,    2509. 

1093 


INDEX. 
[References  are  to  sections.] 

CLERK  OF  COUNTY   (continued). 

petition  to  appraise  homestead  must  be  filed  with,   li'4' 
register  of  partnership   names  must  be  kept  by,   2470. 
CODICIli 

execution  of  republislies  will,  when,   1287. 
included  under  term  "will"  14. 
republication  of,  1287. 
revocation  of  will  revokes,  1305. 
COLLATKRAL  SECURITY.     See  tit.  Pledge. 
COLLATERAL  WARRANTIES 

abolished,    1115. 
COLLECTION 

agent  for,   as   to  duties   of,   2021. 
effect   of  warranty   of  collectibility,   2800. 
partner  may  make  when  acting  in   liquidation,   2462. 
COLLEGES  AND  SEMINARIES  OF  LEARNING 
appointing  president,   650. 
appointing  professors,   650. 
articles  of  incorporation,  649. 

contents  of,   649. 
board  of  trustees,   term,   quorum  and  powers,    650. 
by-laws,  making  of,   650. 
consolidation  of,   652. 

annual  reports  to,  652. 

new  corporation,  trustees  term  of,  652. 

what  authorized  to  consolidate,   652. 
course  of  study,  650. 
election  of  other  trustees,   650. 
existing  corporations   may   reincorporate,    651. 
issue  diplomas,   650. 
may  take  under  wills,   1275. 
power  of  trustees,  650. 
president,  election  of  by  trustees,   650. 
quorum  of  trustees,  650. 
salaries,  fixing  of,  650. 
specific  grants  to,  653. 

cannot  be  diverted,  653. 
transfer  of  property  from  existing  to  new,   651. 
trustees  of,  and  their  powers,   650. 

to  declare  vacancy,   650. 

to  fill  vacancy,   650. 

to  hold  property,   650. 

to  mortgage  and  lease  property,   650. 
wills,  may  take  under,  1275. 

1094 


INDEX. 
[References  are  to  sections.] 

COLLISION 

loss   by,   apportioned,    how,   973. 

of  sliips.      See  tit.   Rule.s  of   !Vuvlii;atiou. 

of  vessels,   from   breacli   of   rules,    971. 

on  breach  of  rules  of  navigation,  liability,  972. 
implies  wilful  default,  972. 

rule  for  avoiding,   970. 
COLLOQUIUM.     See   tit.   Libel. 
COLLUSION 

definition   of,   114. 

in  divorce.     See  tit.  Divoroe. 

presumed  from   lapse   of   time,   125. 
COLOR.     See  tit.  Trade-Mark.s. 
COMMISSION  MERCHANT.     See   tit.   Faotors. 
COM3ION 

interest  in,  what  is,   6S5. 

what   interests   are   in   common,    686. 
COMMON   CARRIERS 

in   general.      See  tit.   Coinmou  Carrier.s  iu  General. 

of  messages.      See   tit.  Carrier.s  of  iiie.ssage.s;  telegraiu.s;  Tele- 
graph and  Telephone   Companies. 

of  person.      See  tit.   Common   Carriers  of  Persons. 

of  property.     See  tit.   Common  Carriers  of  Friiperty, 
COMMON   CARRIERS   IN   GENERAL 

certain  agreements  void,  2175. 

compensation  must  be  reasonable,   2173. 

definition   of,   2168. 

loss  of  valuable  letters,   liability  for,   2177. 

modification  of  liability  of  carrier  by  contract,   2176. 
assent  of  modification  necessary,  2176. 
by  acceptance  of  ticket,  etc.,  2176. 

not  to  give  preferences,  2170. 

must  give  what  preferences,  2171. 

obligations  of,  altered  by  agreement,   2174. 

obligation   to   accept   freight,   2169. 

starting  promptly  at  time  and  place,   2172. 
COMMON  CARRIERS  OF  PERSONS 

additional  amount  to  be  paid,   when,   2189. 

baggage  or  luggage,  how  carried  or  delivered,  2183. 
bicycle  as,   2181. 
carrier's  lien  on,  2191. 

bicycle   as  luggage   or  baggage,   2181. 

carrier  of  persons,   obligation   to  carry,   2180. 

defined,   2181. 

1095 


INDEX. 
[References  are  to  sections.] 

COMMON   CARRIERS   OF    PERSONS    (continued). 

ejectment   of  passengers.      See   tit.   Ejection   of  Passengerrt. 

for  refusal  to  pay  fare,  2188. 
fare,  when  payable.     See  tit.  Fare, 

as   to  when  payable,   2187. 

not  payable  after  ejection,  2190. 
liability  for  baggage  or  luggage,  2182. 
obligation  to  carry  baggage  or  luggage.     See   tit.   Baggage. 

as  to  generally,  2180. 
obligation  to  provide  seats  for  passengers,   2183. 
obligation   to  provide  vehicles.      See  tit.  Vehicles. 

as  to,  2184. 
passenger    who    has    not    paid    fare,    to    pay    additional    rate, 

when,   2189. 
regulations  for  conduct  of  business  as  to,   2186. 
seats  for  passengers  to  be  provided,   2185. 
COMMOIV   CARRIERS   OF  PROPERTY 
liability   of   inland   carriers,    2194. 

exemptions   do  not  apply   to,  when,   219.5. 
liability  for  delay,   2196. 
COMMON   L,AW 

code   continuation   of,    5. 
COMMON   PROPERTY.      See    tits.    Hii.sbaiul    and    Wife;    Property, 
COMMUNITY   PROPERTY 
as  to  generally,   164. 
as  to  what  is,  687. 

contracts  by  wife  in  relation   to,  167. 
disposition  on  divorce,  146. 
distribution  of  on  death  of  husband,  1402. 
distribution  of  on  death  of  wife,   1401. 
limitation    of   action    as   to,    164. 
management,   control,   and  disposition   of,   172. 
COMPENSATION 

for  support  of  adult  children  by  parent,  210. 

given  by  law,   3274. 

of  appraisers  of  homestead,   1258. 

of  assignee  of  creditors,   3471. 

of   borrower,    1892. 

of  depositary  for  hire,   1853. 

of  employee  dismissed  for  cause,  2002. 

of  employee  quitting  for  cause,   2003. 

of  finder,  1867. 

of  partner,  none,  2413. 

of  trustee,   2273,   2274. 

of  voluntary  depositary,  2078. 

1096 


INDEX. 
[Refexences  are  to  sections.] 

COMPENSATION    (continued). 

on  partial  failure  to  perform,   3392. 

on  rescission,   3408. 

services  continued  beyond  two  years,   rate  of,   1980. 

without  employment,  2079. 
COMPLAINT 

to  court.      See   tit.   Courts. 

for  cruelty  to  children  or  animals,   00Tb. 
COMPLETION 

as  applied   to   appropriation   of  waters,    1417. 
COMPO.SITION 

author  has  property   in,   980-985. 
COMPRESSED  AIR 

ds  motive  power  by  railroads,  465a. 
CONCEALMENT.  See  tit.  Insurance. 
CONCESSIONS 

foreign   corporations   may   transfer,    364. 
CONDITIONAL 

delivery  cannot  be  made  to  be,  1056. 

devise  or  bequest.      See  tit.   Devise  and  Boquesf. 

obligation.     See  tit.  Obligations. 

offer  of,  when  valid,   1494. 

will  may  be  probated,  when,  1281. 
CONDITION  OF  WILL.     See  tit.  Wills. 
CONDITIONAL  OBLIGATION.      See   tit.   Oblii^atious. 
CONDITIONS 

concurrent 

detinition  of,  1437; 
performance  of,  1439,  1498. 

forfeiture,   considered   how,    1442. 

impossible,  are  void,   1441. 

kinds  of,   1435. 

performance  of  essential,  when,  1439. 

precedent  or  subsequent.     See  tits.  Conditions  Precedent;  Con- 
ditions  Subsequent. 
as  to  generally,  708. 

restraining  alienation,  void,  711. 

restraining  marriage,  void,  710. 

subsequent.      See   tit.   Conditions   Subsequent. 

unlawful  are  void,   1441. 
CONDITIONS    PRECEDENT 

effect   of,    1347. 

in   will,    1347. 

what  are,   708. 

when   deemed  performed,   1348. 

1097  ) 


INDEX. 
[References  are  to  sections.] 

C0J\DITI01\S   SUBSEQUENT 

as  to  generally,  1438. 

conveyance  on,   1109. 

in  will,   1349. 
CONDONATION.     See   tit.   Divorce. 
CONFIDENTIAL     RELATIONS.        See      tits.      Trust;      Trustees; 

Wills. 
CONFLICT   OF   LAWS 

as  affecting  contracts,    1.556. 

as  affecting  personality,   946. 

as  affecting  realty,  75.5. 

as  affecting  wills,  1376. 

assignment  for  benefit  of  creditors,   3451. 

injunction,    3423. 

marriage  out  of  state  valid,  when,   63. 
CONFUSION  OF  GOODS.     See  tit.  Aeoessioii. 

as  to  ownership  of  things  made  by,  1025-1033. 
CONGRESS 

carriers  bj^  sea  governed  by  laws  of,  2088. 

seamen   governed   by   laws  of,   2088. 
CONNIVANCE 

in  divorce.      See  tit.  Divorce. 
CONSANGUINITY 

collateral  and  direct,  1390;   1392. 

half-blood,   inheritance  by,   1394. 

how  computed,   1388-1394. 
CONSENT 

apparent  consent,  when  not  free,  1567. 

communication    of.      See   tit.   Contract. 
as  to  generally,   1581. 

deed  obtained  by  fraud,  when,   1568. 

essentials  of,   1565. 

fraud  in  obtaining.     See   tit.   Fraufl. 

mutually   necessary   to  contract,   l."iSO. 

when  voidable,   1566. 
CONSIDERATION.      See    tits.    Contract;    Valuable   Consideration. 

agency.  2308. 

as  to  what  constitutes,  1605. 

burden  of  proof  to  invalidate,   1615. 

executed  and  executory,  1609. 

executory,   1610,  1611. 

failure  of,   rescission   for,   1682. 

for  agreement   of  separation   between   hu.sband  and  wife,    160 

good,  what  is,  1605. 

guaranty,  consideration   for,   2792. 

1098 


INDEX. 
[References  are  to  sections.] 

CONSIDERATION   (continued). 

illegal   consideration   void,    1608. 

impossibility  of  ascertaining,   effect  of,   1612. 

in   contract   between   spouses   for   separation,    160. 

lawful   only   is   valid,    1607. 

negotiable  instrument  must  have,   3122. 

presumption  as  to,  3122. 
new,  contract  altered  without,  effect,   1697. 
proportion   payable    where   performance   prevented,    1515. 
return  by  mino;r,  as  disaffirmance,  35. 
rewards  offered.     See  tit.  Rewartls. 
subscription.     See  tit.   Proiio.sal. 
written  instrument  pre.sumert   to   have,   1614. 
COXSIGXMEXT 

definition    of,   2110. 

directions  of,   to  carrier,   2115. 

definition  of  consignee,  2110. 

delivery  of,  2118-2122. 

freightagt^.     See  tit.  Freightage. 

insolvency  of  consignee,  effect  of,   3077. 

specail    contract     of    carrier.       See     tit.     Coiuiiiou     Carriers    of 
Property. 

stoppage    in    transitu.      Sec    tit.    Stoppage   in   Traii.sitii. 
COXSOLIDATIOX 

of  co-operation  business  associations,   653i. 

of  co-operative  corporations  with   other  corporations,    G53x. 
CONSTITI'TIOIVAL  LAW 

Statute   creating  homestead    rigiit   constitutional,    1269. 
CONSTRUCTION 

of  deed.     See  tit.  Interpretation. 

of  devise  of  land,  1311. 

of   words   and  phrases.    13. 
CONSTRUCTIVE   DELIVERY 

what  is,   1059. 
CONSTRUCTIVE    NOTICE.      See    tits.    Notiee;    itecordiug    Trans- 
fers. , 

conveyance,  filing  witli  the  recorder  is,  1213. 
CONSTRUCTIVE  TRUSTS.      See   tit.    I  ses  and   Tru.sls. 
CONSTRUED 

joint  authority,  how,   12. 
CONSUIi 

of  United  States  may  take  foreign  acknowledgments,  1183. 

1099 


INDEX. 
[References  are  to  sections.] 

CONTEMPT 

in   divorce  proceedings.      See   tit.   Uivoroe. 

officer  taking  acknowledgment  may  punisli  for,  1201. 
CONTINGENT    ESTATES.      See    tit.   Future    Contingent    Estates. 
CONTINGENT   INTEREST 

as   to  what   constitutes,    695. 
not  void  because  improbable,   697. 
CONTINGENT  REMAINDER   IN  FEE 

as  to,   772. 
liow  eweated,   773. 
on  term  of  years,   776. 
CONTINUANCE 

of   corporate    existence,    2S7,    401. 
CONTINUING   GUARANTY.     See   tit.   Guaranty. 
CONTRACT 
acceptance 

by  performance  of  conditions,   1584. 
reward,  offer  of.     See  tit.  Re-trard. 

deemed  complete,   w^hen,    1582. 

mode  of  communicating,   1582. 

must  be  absolute,  1585. 
assumption  of  obligation  by  accepting  benefits,  effect  of,   1589. 
as  to  who  may  contract,  1556. 

idiots.      See   tits.   Idiots;  Persons  of  Unsound  Mind. 

minors.      See   tit.   Infants  and   Minors. 

as  to  power  to  enter  into  contracts,   155S. 
breach  of,   damages  for,   3294. 

by  husband  and  wife.      See  tit.  Husband  and   Wife. 
consent,   mutuality   of,    1580. 

as  to,  generally,  15S0. 
consideration   for.      See   tit.   Consideration. 

as  to  generally,  1605. 

executed  and  executory  consideration,   1609. 

how  ascertained,  1611. 

illegal  consideration,   effect   of,   160S. 

impossibility  of  ascertaining,  effect  of,  1612. 

invalidating   sufficient   consideration    burden    of   proof,    1615. 

lawful  consideration,  1607. 

legal  or  moral   obligation  as   a   good   consideration,    1606. 

possibility  of  execution  on  face,   1613. 

presumptive  evidence  of  consideration,  when,  1614. 
contract  for  benefit  of  a  third  person  may  be  enforced,  when, 

1559. 
contracts  creating  monopolies.     See  tit.  Monopolies. 

1100 


INDEX. 

[References  are  to  sections.] 

CONTRACT    (continued). 

contracts  in  restraint  of  trade  void,  1673. 

exception  in  favor  of  good  will,   1674. 
corporate   seals,    how   affixed,    1628. 
definition,   1549. 
duress.      See   tit.   Duress. 

as  to  what  constitutes,  1569. 
generally,   1569. 
effect  of,  nullity  of,  one  alternative,   1451. 
essentials  of 

as  to  generally,   1269,   1550. 
consent.     See  tit.  Consent. 
executed   and   executory   contracts,   what   are,    1609. 
express  contract 

as  to  what  is  an,  1620. 
express   or   implied   contracts,    1619. 
implied  contract,  what  is,   1621. 
kinds  of  contracts.   1619. 
may   be   oral,   when,    1622. 

must  be  in  writing,   when.   See   tit.    Statute  of   Frauds. 
as   to,   generally,   1624. 

agreements  authorizing  and  employing  agent   to  sell   real 
estate,  1624. 
extinction    of    contracts,    16S2. 
by  alteration,  1700. 

alteration  of  verbal  contracts,  1697. 

alteration   and  modification   of  written   contracts,   1698. 
by  cancellation,  1699. 
by  performance,    1682. 
by  rescission,  1688. 
how  effected,   1691. 
when  party  may  rescind,   1689. 

when  stipulations  against  right  to  rescind  d(j   not  defeat, 
1690. 
by  unauthorized  alteration,   1700. 

alteration  of  duplicate  not  to  pi-ejudice,   17(i]. 
fraud  in  procuring.     See  tit.  Fraud. 

as  to,  1571. 
identification    of   parties    to   contract   essential,    155S. 
interpretation  of  contracts.     See  tit.  Interpretation. 

as  to,  generally,  1635-1661. 
In  the  alternative,   1448,   1450. 
in   writing,   effect   of,   1625. 
takes  effect,  when,   1626. 
joint  and  several,   1659. 
lender  cannot  modify,  1905. 

1101 


INDEX. 
[References  are  to  sections.] 

CONTRACT    (continued). 

lien  may  be  created  by,  2884. 
manner  of  creating,    1619-1623. 

contract  In  writing  takes  effect,   when,   1626. 

effect  of  written   contract,    1625. 
menace.     See  tit.  Menace. 

as   to  what   constitutes,    1579. 
mistake.      See  tits.  Fraud  ami  Mistake;  Mistake. 

as  to  what  constitutes,   1576. 
mode  of  eoniinuuioatiug;  acceptance  of  proposal. 

as  to  generally,   1582. 

when  communication  deemed  complete,  1583. 
mutuality  of  consent,   1580. 

not  in  through   fraud,   enforceability,    1623. 
object  of  contract,  1595. 

as  to  requisites  of  object,   1596. 

as  to  what  is,  1596. 
contract  partially  void,   when,   1599. 

contract  wholly  void,   when,    1598. 

impossibility  of  contract,  what   is,    1597. 
of  exchange,  form  of,  1804. 
of  minors.      See  tit.   Minor. 
of  persons  without  understanding,    38. 
partly  written  and  partly  printed,    165. 
private  seals,  act  abolishing  applicable,  1629. 
provisions   of  code   in   respect   to   real   property;   1627. 
ratification  of.     See  tit.  Ratifieatiou. 

as    to    validity,    1588. 
revocation   of  proposal.      See   tit.   Revocation. 

as  to,  generally,  1586. 

how  made,   1587. 
time   of   performance    of,    1657. 

to  relieve   directors  from  liability   void,   when,   327. 
transfer  of  waives  vendor's  lien^  when,  3047. 
undue   influence.      See    tit.   ITndue   Influence. 

as  t.o  what   constitutes,   1575. 
unlawful  contracts.     See  tit.  Unlawful  Contracts. 
wagering.     See  tit.  Uuiavrful  Contracts. 
what  is  a  contract,   1549. 
who  may  contract,   155  6. 
CONTRACT  FOR    SERVICE 
limited  to  two  years,   1980. 
CONTRIBUTION 

between  persons  bound  jointly  or  jointly  and   severally, 
general  average  loss,  in  admiralty,   2152. 

1102 


INDEX. 

[References  are  to  sections.] 

CONTRIBUTION   (continued). 
iii»«urance   cases   iu 

as  to  generally,   2621,   2622,   2642,   274.5. 
where  there   is  over-insurance,   2620. 
release  of  one  joint  debtor,  effect  on  right   to,  1.548. 
surety's   right   to,    2S48. 
CONTRIBUTION.     See  tit.  SHrelysliip. 
between  joint  obligors,    1432. 
general  average  loss,   2152. 
insurance  cases,   2621,   2646. 

release  of  joint  debtor^  effect  on   right   to,   1543. 
CONTROM.ER   OF   STATE 

duty,  where  property  eschea,ts,  1406. 
selection  of  right  of  way  to  be  transmitted  to,  478. 
CONVERSION 

claim    and    delivery.      See    tit.    Claim    and   nelivery. 
damages  for,  3336-3338. 
equitable,    1338. 
extinguishes  lien,  2910. 
in  general,   1711-1714. 
lien   extinguished  by,   2910. 
CONVEYANCE.     See  tits.  Deeds;  Transfers. 
absolute  not  to  be  conditional,   1056. 
agent  may  covenant   on,    2324. 
agreement  for 

covenants,    1733,    1734. 

effects  of,  1731. 

specific   performance    of.    1741. 

statute  of  frauds  as  affecting,   1741. 
bona   fide   purchaser   or   encumbrancer,   who    is,    1107. 
by  attorney   in  factj   1095. 
cancelation  of  instruments  in,  3412,  3414. 
certificate   of  proof  of  execution   of,   1198. 
changed   name,   by  person  with,   1096. 
community   property,   wife's   consent   to,    172. 
conclusiveness  of,  and  parties  bound,   1107. 
conditions  precedent  in,   1110. 
conditions  subsequent  in,   1109. 
constructive   delivery,    1059. 
covenants 

agreement   to   give,   1733. 

by  agents,  how  far  binding,   2324. 

form  of,  1734. 

implied,  1113. 

running  with  land,   1460-1468. 

who   bound   by,    1465. 

1103 


INDEX. 
[References  are  to  sections.] 

CONVEYANCE    (continued). 
dainaii^es 

for   breach   of  agreement   to   buy,   3307. 

for  breach  of  agreement  to  convey,   3306. 

for  breach  of  covenants,   3304. 
against  encumbrances,  3305. 
date  of  delivery,  presumption  as  to..  1D55. 
deemed  mortgage,  though  absolute  in  form,  when,   2924. 

definition   of,   1215. 
delivery 

constructive,   1059. 

date   of,   presumption   as   to,    1055. 

in   escrow,   1057. 

must   be   absolute,    1056. 

necessity   for,    1054. 
easement,  passes  with,   1104. 
escrow 

delivery   of   deed   in,    1057. 
executed  before  code,  how,  1205,   1206. 
execution   of   not   acknowledged,   how   proved,    1195. 
fee  passes   by  presumption,    1105. 

word  of  inheritance  unnecessary  to,   1072. 
form    of,    1092. 

fraudulent.   See  tit.  Fraiidiiient  Transfers. 
grant,   includes  what,   1053. 
heir's   conveyance   good,    wlien,    1364. 
"lieirs"  and   "issues,"   interpretation   of  in,   1071. 
heretofore    made    governed    by    then    exi'sting    laws,    1206. 

recordation   of  governed   by   then   existing  laws.    1206. 
highway,  boundary  by,  passes  to,  1112. 
homestead,  conveyed  how,   1242. 
incidents    of   thing   transferred   follow   to,    10S4. 
infants  conveyance.     See  tit.  Minor. 
inheritance,   words   of  in,    not   necessary,   1072. 
interest  subsequently  acquired  passes  to  purchaser,  11  OK. 
interpretntiou 

against  grantor  most   strongly,   1069. 

in   general,    1066. 

of   "heirs"   and   "issue,"   1071. 
irreconcilable  provisions   in,    1070. 

of  limitations,   1067. 

recitals  construed,  when,  1068. 
irreconcilable  provisions  in,   interpretation   of,   1070. 
"issue"  and   "heirs,"   interpretation  of,   1071. 
judgment  proving  execution  of  instrument,  1203. 

1104 


INDEX. 

[References  are  to  sections.] 

CONVEYANCE    (continued). 
lien 

of  vendee,   3051. 

of  vendor,  3036-3049. 
limitation   in,   as   to,    1067. 

married  woman's.     See  tit.   Married  \Aoineu. 
mortgage,   absolute  deed  transfer  deemed   a,   when,    2924. 
name  changed,  by  person  with,  1096. 
operation  of  law 

after-acquired   title   passes   by,    1106. 

convej'ance  by,  1091. 
owner    for    life,    conveyance    by,    1108. 
owner  for  years,  conveyance  by,  1108. 
power  of  attorney  to,  1094. 
proof  of   execution,   certificate   of,    1200. 
proof  on   action   for,  and   effect,    1204. 
recitals   in,   resorted  to,  when,  1068. 
reconveyance,    surrendering    or    canceling    instrument    not    a, 

1058. 
record  as   notice.      See   tits.   Constructive  Notice;  Notice. 
recording.      See  tit.  RecordinR. 
remainders,  conveyance  of,  1111. 
rents,   conveyance    of,    1111. 
requisites  of,  1091. 

reserving  power  to  revoke,  effect  of,   1229. 
statute  of  frauds,  effect  of  on,  1091,  1624. 
stranger,  inures  to,  when,   1085. 
subscribing  witness,  proof  of  by,  1195,   1197. 
title,  what  passes  under,   1083. 
unrecorded 

valid  between  parties,    1216. 

void  as  to  whom,   1214. 
warranty 

covenants   for,   1463. 

liability  for,  1115. 

lineal   and   collateral,   abolished.    1115. 
what  law   governs,   1205,   1206. 
will,   effect  of  on,   1302,   1304. 
words    of   inheritance   not   necessary    in,    1072. 

rO-OPERATIOlV 

of  co-operative  agricultural,  etc..  associations  with  other  cor- 
porations, 653q. 
CO-OPER.\TIVE   AGRICULTLRAI..  ETC.,   ASSOCr  .VTIONS 

agents,  appointment  of,  653q. 

1105 


INDEX. 
[References  are  to  sections.] 

CO-OPERATIVE   AGRICULTURAL,   ETC.,  ASSOCIATIONS    (con- 
tinued). 
:i III f II (line lit  of  articles  of  incfirporatiou 

as   to  generally,   653a. 
debts  at  time  of,  653r. 
articles  of  incorporation 

amendment  of,   653r. 
debts   at   time  of,   653r. 

what  to  contain,    6.53o. 
b>-la^'».s 

as   to   what   to   contain,    653p. 

conditions  of  membership.  653p. 

membership  fee,  653p. 

number  of  directors,   653p. 

proxies,   653p. 

qualifications   of   members.    653p. 

removal  of  directors,   653p.  ^ 

code  of  by-laws.     See  By-Laws,  this   title. 

as  to,  what  to  contain,   653p. 
cpnditions   of  membership,   fi53p. 
co-operation   with    other    corporations,    653q. 
debts  at  time  of  amendment  of  articles  of  incorporation,   653r. 

directors 

number  of,   653p. 

removal   of,   653p. 
dissolution  of,   653q. 
fee,   membership,   653p. 
formation   of.   6.?3m. 
iiieiiibership  of 

as  to  generally,  653m. 

conditions  of,   653p. 

fee,  653p. 

qualifications   of,    653p. 

transfer   of,    653n. 
number  of  directors,  653p. 
po^vers   of  association 

as  to  generally,  653m,   G53q. 

dissolution,  653q. 

to   appoint  agents,   653q. 

to  co-operate  with  other  corporations,   653q. 

to  purchase   property,    653q. 
proxies,    653p. 

purchase   of  property   by,    653p. 
transfer  of  membership  of,  653n. 

1106 


INDEX. 

[References  are  to  sections.] 

CO-OPERATIVE   BUSIXESS   ASSOCIATIONS.      See   tit.    Co-Oper- 
ative  Business   Corporations. 

alteration   of  purpose  of  association,    653g. 
articles  of  association,   653d. 

acknowledgment   of,    653d. 

filing  of,  653d. 

subscription   and   acknowledgmtnt   of,    653d. 
by-laws,    653e. 

division  of  profits,   653e. 

expulsion,    653e. 

fees  for  membership,  dues,  etc.,  653e. 

majority    of   association    necessa.ry    to    adopt,    653e. 
calling  meetings  of,   653ha. 
manner  of  conducting  elections,  653e. 
method  of  calling  meetings  of,   653ha. 
qualification   and   succession,    653e. 
recording   and   filing   by-laws,    653e. 
what  by-laws  may  provide,   653e. 

withdrawal,  ascertainment  of  interest,  653e. 
certificate  of  membership,   653b. 
consolidation    of    association,    6531. 

fee   for   filing,    653i. 

filing  of  agreement,   6531. 

what  agreement  must  state,  6531. 
dissolution   and   winding   up   of  association,   6531. 
execution   against  the  association   or  its   members,    65of. 
formation  and  purpose  of,   653b. 
interest  of  members,   653c. 
members,  liability  of,  653c. 

who  are  eligible  as   members,   653c. 
powers   of   the   association,    653h. 
profits  of,   division   of,   653e. 
purpose   of  association,   how  altered,    653g. 
purposes    of,    altered    how,    653g. 

quo  warranto   to   inquiry   i'nto   riglits   to   do   business,    653k. 
rights,    interest,    and   liability   of   members,    653c. 
succession,   653h. 
transfer  of,   653b. 

what  corporations   not  affected   by   title.    6531. 
winding   up  of  association,    653j. 

CO-OPERATIVE      BUSINESS      CORPORATIONS.         See      tit.    Co- 
operative   Business   Ass<'fiations. 

purpose  for  which   may   be  formed,   653a. 

1107 


INDEX. 

[References  are  to  sections.] 

CO-Ol'KUATIVE  COKPORATIOIVS 

as  to   how  formed,   653t. 
agents,   appointment   of,   653x. 
artleleH   of  iuoorixtratiou 

amendment  of,   65.3y. 

what  to  contain,  653v. 
by-lav»'s  of 

as  to,  what  to  contain,  653w. 

expulsion   of   members,    653w. 

liow  adopted,   653w. 

ineinbership 
fee,  653w. 
to   cease   when,   653w. 

removal   of  directors  and  filling  vacancies,   653vv. 

qualification    of    members,    653w. 
consolidati'on   with   other   corporations^    653x. 
dissolution   of,    653x. 
membership   of 

as   to   generally,    653n. 

conditions   and   terms   of,    653w. 

fee    of,    653w. 

number  of  and  qualifications  of,  653w. 

transfer    of,    653u,    653w. 
particular   corporations,    title    not    applicable    to,    653za. 
powers  of 

as   to   generally,    653x. 

to  consolidate  with   other   corporations,    653x. 

dissolution,    653x. 

to    hold    property,    653x. 

to  appoint  agents,   653x. 
property,   holding  of,   653x. 
qualifications    of    members,    653w. 
quo  warranto,   as   to,   653z. 
voting   by 

as   to  generally,   653zb. 

number  of  votes   required,   653zb. 
CO-OWjVERS.      See   tits.    Mines;   Mining  ClainiN. 
delinquent   notice    to,    1426o. 
payment  by,   1426o. 
CORPORATE  POWERS 
as    to   generally,    354. 
banking  prohibited,    356. 
by-laws  of.     See  tit.  By-l-aw-s. 
limitation   of,   355. 

1108 


INDEX. 
[References  are  to  sections.] 

COUl'OKATIi;  SKAL.      See  tit.  C'urituratioiiN. 

liow   affixed,    162S. 
CORPOK ATE   STOCK.     See   tit.    StooklioltlerM. 
CORPORATION   ]VA>IE.      See   tit.    CorporatioiLs. 

CORPORATION    SOLE,      See    tit.    Religious,    Social    and    Benevo- 
lent   Corporations. 
CORPORATIONS.      See    tit.    Corporate    Powers. 

acknowledgment  of  articles  of  incorporation,   292. 

acts  ultra  vires.      See  tit.    Ultra  Vires. 

affidavit    of    corporations    authorize    to    act    as    executors,    etc., 

290a. 
affidavit    of   subscription    of    stock    and    payment    of   per    cent, 

295. 
agricultural   fair  corporati'ons.   See  tit.   Agricultural  Fair  Cor- 
porations. 
amendments   of  articles  of   incorporation.      See   tit.   Articles   o( 

Incorporation. 
amount  to  be  subscribed  to  be  fixed^  293. 
a    "person,"    14. 

articles    of    incorporation.      See    tit.    Articles    of   Incorporation. 
as.sessnients 

action   to   recover,    349. 

directors  may  levy,  when,  and  for  what,  331. 

jurisdiction    acquired    by    publication    of    notice,    340. 

limitation   of,    332. 

not    invalidated,    by    what    irregularities,    346. 

not   to   be    levied   upon   stock   in    treasury,    343. 

not  to  be  levied  when  previous  unpaid,  when,   333. 

notice    of 

contents  of,  338. 
delinquent,   337. 
form    of,    337. 
publication,   339. 
service  and  piiblication  of,  336. 
order  for  must  contain,  what,   334. 
proceedings  to  be  begun   anew,  when,   346. 
sale  of  stock  for  payment  of,   334-349. 
banking.      See    tit.    Banking   Corporations. 
banking   expressly  prohibited,    356. 

Ijeneflt  society.     See  tit.  Religious,  Social  and  Benevolent  Cor- 
porations. 
benevolent    corporations.      See    tit.    Religious,    Social    and    Be- 
nevolent  Corporations. 
Ijequests    to,    restriction    on    power   to    make,    1313. 
board   of  directors.      See   tit.   Directors,  Board  of. 

1109 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 

board    of    trade.      See    tit.    Chsimliers    of    t'oiniiiorfe,    Boardx    ot 
Trade. 

bonded    indebtedness,    359. 

creating  and  increasing,  proceedings  for,   3.')9. 
bonds,    restrictions    upon    issue    of,    359. 
books   of   stock   and   transfer,    how   kept,    378. 

of   directors   and   stockholders   open   for   inspection,    321. 
books  to  be  open  to   inspection,   321. 
bridge,     ferries,     wharf,     chute,     and    pier.       See    tit.     Bridges, 

Ferry,   Wharf,  Chute,  and  Pier  C'oryoration.s. 
Iniilding   and   loan.      See   tit.   Building:   and   L.oan   Associations; 
Building-  and   Land   Corporations. 

formation   of,   64Sa. 

reincorporation   of   existing,    64Sa. 
building  corporations.      See   tit.   Building   Corporations. 
burned  bonds  of,  procedure  to  obtain  duplicates,  329. 
business    associations.      See    tit.    Co-operative    Business    A.sso^ 

eiations. 
business    corporations.       See    tit.    Co-operative    Business    Cor- 
porations. 
by-laws.      See   tit.    By-Laivs. 
capital  stock 

amount  of,   to   be   set   forth   by   articles,   290. 

increasing  and   diminishing,   proceedings    for,    359. 
restrictions  on,  309. 

withdrawal,   restrictions   on,   309. 
capital   stock   of  banking   companies,    300. 

dividends   of,    300. 
cemetery.      See   tit.    Cemetery   Corporations. 
certain    corporations    to    state    further    facts,    291. 
certificate   not   to    issue,    when,    296. 
certificate  of.      See   tit.   Certificate  of  Stoelc. 
certificate  of  Incorporation,  Secretary  of  State  to  issue,  296. 
certificate    of    residence    to    be    filed,    when,    1163. 
certificate  of  stock.     See  tit.  Certificate  of  Stocli. 

restoring   lost.      See   tit.   Restoration  of  IjOst   Records. 
chamber    of   commerce,    etc.,    corporations.      See    tit.    Clianiber 
of  Couinierce,  Boards  of  Trade,  etc. 

copy   of  decree  to  be  filed  with  secretary  of  state,   300a. 

filing    decree   of   court,    300a. 

how  perfected,    300a. 
change   of  place   of  business,   procedure   on,    321a. 
changing  number  of  directors,   361. 

1110 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 

cliute.      See    tit.    Bridges,   Ferry,   AA'liarf,    Chute   aud    Pier   Cor- 
porations. 

classes    of.      See    "Kinds    of,"    tliis    title. 

collateral   attack,    358. 

colleges   and   seminaries.      See   tit.   Collese.s   and   Seminaries  of 

Learning;, 
consolidation 

of    adjoining    mine   companies,    361. 

of  co-operative  business  associations,   653i. 

of  societies,   652,   653. 
complaint   against,    315. 

noti'ce  of  filing  petition,   315. 
consolidation   of  adjoining  mining  companies,    361. 
continuance   in   business,    358. 

contract  to  relieve  directors  from  liability  void,  when,  327. 
co-operative  business   corporations   and   associations.      See   tit. 

Co-operative  Corporations  and  Associations. 
copy  of  articles  must  be  filed,  where,  299[a]. 
corporate   meetings,   waiver  of  notice  of,   320a. 
corporations    to   discover   fires   and   save   human    life.      See    tit. 

Fire  Corporations. 
corporations  to  furnish  light  for  public  use.     See  tit.  Corpora- 
tions  to  Furnish   Light   and   Heat. 
costs  of  suit  for  duplicate  of  lost  certificate  of  stock,  328. 
cruelty.      See    tit.    .Societies    for   the    Prevention    of    Cruelty    to 

Children   and  Animals. 
curing   defects   in   articles,    cannot   be   by   amendment,    362. 
damages 

for  failure  to   file  copy  of  articles  as  requi'red,   2r)n[a]. 

for  false   entries,   316. 

recovery    of    by    purchaser    of    franchise    at    execution    sale, 
391. 
debts   beyond   capital    stock,    liability    for,    309. 
definition    of,    283. 
delinquent   assessment,   sale   of   stock   of   unknown    owner   for, 

365. 
devise    to,    restrictions    of   povver    to    make,    1313. 
directors 

are    trustees    of    creditors    and    stockholders,    100. 

changing  number  of,   361. 

contracts  relieving  from  liability  void,  327. 

financial  statement  to  be  made  to  stockholders,  when,  302a. 

inhibitions  on,  309. 

majority  a  quorum,   308. 

1111 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 
directors    (continued). 

majority   must   be   citizens   of   state,   305. 

must   perform   duties,    30S. 

number    of,    290,    305. 
clianging,    361. 

organization   of  board   of,   308. 

personal  liability  of,   309. 

limitation   of  actions   on,   309. 

removal    from   office,    proceeding   for,    310. 

vacancies,  how  filled,  305. 

who   may  be,   305. 

election  of.      See  "Elections,"   this   title, 
notice  of  election  of,   302. 
of  new  on  removal  of  old,  310. 
time   of,    302. 
dissolution  of,  399-403. 

by   amendment   of   law,    404. 

judgment   cannot  be   rendered   against  after,    404. 
dividends  to  be  declared  from  surplus,   309. 

distribution    of   land    and   water,    309. 

penalty    for   violation    of    section,    309. 
dock,    528-531. 
elections.      See  "directors,"   this  title. 

adjournment   of,    314. 

by-laws    may  prescribe    rules    for,    303. 

complaints  respecting,  and  proceedings,   315. 

cumulative   voting   at,    307. 

eligibility   of  voters,   312. 

lunatic's  stock,  how  represented  at,   313. 

may    be    postponed,    314. 

minor's  stock,  how   represented  at,   313. 

not  held  at  appointed   time,   procedure,   315. 

votes   avoided,    how,    312. 

who  may   vote,  312. 
electric,   632. 

examination   of  afliairs.   See   tit.   Examination  of   Corporations. 
examination  of  books  of.      See  tit.   Mining  Corporations, 
execution  sale 

corporation   retains  power,   391. 

purchaser   at    may    recover   penalties,    390. 

purchaser  at  to  transact  business  of,   389. 

where   to  be  held,    393. 
execution  of  articles  of  incorporation,   292. 
existence   of  corporation   not   affected   by    code,    288. 

1112 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 

existence    of,    how    continued    under    code,    2S7. 

extension    and   dissolution    of,    399-403. 

false   certificate   of   stock,    316. 

false   entries,   316. 

fee   of   recorder    for   recording,    1163. 

ferry,    528-531. 

filing   of   articles   of   incorporation,    erroneous,    corrected    how, 

363[a]. 
fire,  corporations  to  discover,  etc.     See  tit.   Fire  CorporatiouN. 
fire,    marine    and    title    insurance    corporations.      See    tit.    lu- 

8uranee    Corporation.^. 
foreign    corporations.      See    tit.    Foreig-n   Corporations, 
formefl 

complete,    when,    296. 

for  any  purpose,  286. 

how,   285. 
frani-iilNe 

for    constructing    road    for    bicycles    and    horseless    vehicles, 
etc.,   524. 

of,    may    be    sold   under    execution,    388-393. 

redemption   of   from   execution   sale,    494. 
fraternal.      See  tit.   ReUgiou.s,  Sooial   and   Uenevolent   Corpora- 
tions. 

societies    exempt   from    insurance    laws,    453k-453p. 
friendly  societies,   limitation    of  amount   of  land   that   may    be 

held  by,   596. 
gas.      See    tit.    Corporations   to    i<''nrnisli    Light    aurt    Heat. 
liomestead   corporations.      See   tit.    Home.steads. 
good    will.      See   tit.    Good   Will. 
increasing   and   diminishing   capital    stock,    metliods    of,    359. 

consent   and   no   di'ssent,    359. 

consolidation   of  corporations,   359. 
infant's  stock,  how  represented  at  elections,   313. 
inspection,   books   to  be   open   to,   321. 

insurance  corporations.      See   tit.    Insiiranee  Corporations. 
irrigation.      See   tit.   AVater   and   Canal    Corporations. 

as    to,    552. 
journal   of  proceedings,  how  to   be  kept,   377. 
justice  of  the  peace   may  order  meeting  of,  when,   311. 
Ivinds   of 

as  to   generally,   284. 

public  and  private,  284. 
land   and   buildiing   corporations.      See   tit.    Land   and   Building 
Corporations. 

1113 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 

legislature  may  amend  corporate  law,  404. 

life,  health,  accident  and  annuity  insurance  corporations.   See 

tit.    Insurance   Corporations, 
limitation   of   actions 

in  favor  of  foreign  corporations,  406. 
to  enforce  directors  personal  liability,   309. 
to   recover  stock  sold  for  delinquent  assessments,   3  47. 
limitation  of  powers  of,  355. 
lost    or    destroyed    certificate    of    stock.      See    tit.    Certificate   of 

Stuck. 
lunati'c's    stock,    how    represented   at    elections,    313. 
majority    of    stockholders    must    be    represented    at    elections, 

312. 
married  T^'oman 

dividends   may    be   paid    to,    325. 
transfer  of  stock  by,  3  25. 
may  acquire  real  property,  and  how  much,   3C0. 
may    transfer   foreign   concessions,    364. 
mechanic's    institutes,    etc.      See    tit.    Chambers    of   Commerce, 

etc. 
meeting; 

adjournment    of,    312. 

application  to  justice  of  peace  to  call,   311. 
by    consent    valid,    317. 
by-laws    may   provide   for,    303. 
justice  of  peace  may  call,  wMien,   311. 
special,   when   and   how   called,    320. 
waiver   of  notice   of,    320a. 
where  to  be   held,    319. 
minimum  capital  to  be  required  to  be  paid   in   before   organi- 
zation,   290a. 
mining  corporations.      See   tit.   Mining  Corporations. 
misnomer  in   instrument  does  not  invalidate   contract,   357. 
mortgage    insurance    corporations.      See    tit.    Mortgage    Insur- 
ance. 
mutual   benefit  and   life   associations.      See   tit.    Insurance   Cor- 
porations. 
mutual  life,  health,  and  accident  insurance  corporations.     Set 

tit.   Insurance   Corporations. 
name  of  instrument  creating  corporations,    28^. 
no   provision    in    by-laws,    regular   and    special    meetings,    how 

called,  320. 
nonprofit    co-operative    agricultural,     etc.,    associations.       See 
tit.   Co-operative.  Agricultural,  etc.,  Associations. 

1114 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 

non-resident,   transfer  of  stock  by,   326. 
notice 

false,    liability    of    officers    for^    31fi. 

of    hearing    of    application    for    restoration    of    lost    records, 

certificate,    etc.,    365. 
to   be   published    in    what   newspapers,   303. 

notice   of   as.sessinent 

contents  of,   33S. 

delinquent,   337. 

form   of,    335. 

publication   of,   339. 

service    of,    336. 

notice   of  directors   and   stockholders   meeting,    320. 
notice  of  electi'on   of  directors,   302. 
notice  of  meeting; 

to    create    or   increase   bonded    indebtedness,    359. 

to  increase  or  diminish  capital  stock,  359. 

to    remove    directors,    310. 
notice  of  proposed  change  of  principal  place  of  business,  321a. 
notice    of   sale    of    stock    to    pay    assessment,    how    publication 

of    proved,    348. 
number  of  directors  may  be  increased  or  diminished,   290. 
oath   of  officer  to   subscribe  to  stock  and  payment   of   ten   per 

cent,    295. 
officers.      See  tit.   Officers  of  Corporations. 

false    certificates,    notices,    or    reports    by,    316. 
other    than    for   profit,    312[a]. 
penalties,   recovery  of  by  purchaser  of  franchise  at  execution 

sale,   390. 
pier.      See    tit.    Bridjsrcs,    Ferry,    Wliarf,    Clmte,    and    I'ier    Cor- 
poration. 
pioneer,  amount  of  land   to  be   held   by,   596. 
place  of  business,  proceedings  for  change  of,   321a. 
postponement    of   election,    314. 
powers    of.      See    tit.    Coriiorate   Po^vers. 

powers   of  and  business   exercised   by  board   of   directors,    305. 
prerequisite   to   filing  articles   of   incorporation    for  profit.    294. 
prerequisites  to  filing  articles,   293. 
private    corporations,    how    formed,    285. 
private  corporations  may  be  organi'zed,  286. 
proceedings,  at  meetings,  318. 

profit,   associations   formed   for  purposes   other   tlian,    593-605. 
public    and    private    distinguished,    284. 

1115 


INDEX. 
lliefcrences  are  to  sections.] 

CORPORATIONS    (continued). 

publication   of  notice,   i'n  what  newspapers,   303. 
purposes    for   which    may   be    formed,    286. 
quorum 

of  board,   305. 

of    stockholders,    by-laws    maj-   provide    for,    303. 
quo    warranto,    against,    358. 

quo    warranto,    proceedings    thereon    regarding    elections,    315. 
railroads.      See    tit.    Railroad    Corporation.**. 

real    property.       See    tits.    Buihliu^-     and     I>oau     t'orporatiouH; 
Cemetery   Corporations,  etc. 

amount  corporations  may  acquire  and  hold,   360.     ' 

how  acquired,   360. 
records 

restoration   of  lost.      See  tit.  Restoration  of   Lost   Records. 

stock  and  transfer  books,   how   kept,   378. 

to  be  open   for  inspection,   377,   378. 

what  to  be  kept,   377. 
records  of.      See   tit.   Articles  of  Corporation. 
recovery   of   stock   sold   for   delinquent   assessments,    349. 
redemption 

of  franchise  from  execution  sale,  392. 

of  stock  sold   for  delinquent   assessments,   347. 
regular  meetings,   how  called  where  no  provision   in   by-laws, 

320. 
religious  corporations.     See  tit.  Religious,  Social,  and  Benevo- 
lent   Corporations. 
removal  from  office  of  directors.      See  tit.   Directors,  Board  ot. 
reports,  false,  liability  of  officers  for,  316. 
representation  of  stock,  313. 
resemblance   in    name,    296. 
restoration  of  lost  records,  certificates  of  stock,  etc. 

as  to  generally,   365. 

jurisdiction  of  court  judgment  and  decree,  365. 

notice    of    hearrng.    publication    of,    365. 

proof  required   of  publication  and  service  of,'  365. 
service   of,    365. 

of   lost    original    articles    of    incorporation,    297a. 

petition   filed  with   court  for,   365. 

unknown  ow-ners,  sale  of  stock  for  delinquent  assessments, 
365. 

1116 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 
sale  of  Htock 

to    pay    assessments,    348. 

action    to    recover    stock,    347. 

corporation  may  buy  in  default  of  bidders,  343. 

disposition   of   stock   bought,    344. 
extension  of  time  for,   345. 
jurisdiction,    liow   acquired,    340. 
of   unknown    owners,    365. 
publication  of  notice,  liow  made,  34Sv 
to    be    by   public    auction,    341. 
to   be   to   the   highest   bidder,    342. 
waiver   of,   and   of   suit   to   recover   same,    349. 
savings    and    loan    corporations.      See    tit.    Savings   and    Loan 

Corporation.s. 
seal.     See  tit.  Corporate  Seal. 
seminari'es    of    learning.      See    tit.    Collese.s   and    Seminaries    ot 

Liearning. 
social    corporations.      See    tit.    Iteligioiis,    Social    and    Benevo- 
lent  Corporations. 
societies    for   prevention    of   cruelty    to    children    and   animals. 

See    tit.    Crneltj-    to    Children    anil    Animals. 
sole.      See   tit.   Corporation   Sole. 
special   meetings,   how   called   where   no   provision   in   by-laws, 

320. 
special    prt)visions    apply,    "when,    403[a]. 

legislature   may   amend  corporate    law,    404. 
statute   under   which   organized   may   be    repealed,    384. 

how  represented,   313. 
stockholders.      See   tit.   Corporate  Stock. 
liability.     See  tit.   Stockholders. 
meetings,    who    may    vote    at,    321b. 
maximum    period    of   proxies,    321b. 
proxies  void,   when,   321b. 
revocability    of    proxies,    321b. 
who  are,    298. 
street    railroad    corporations.       See    tit.    Street    Railroad    Cor- 
porations. 
subscription    of   article.s    of    incorporation,    292. 
affidavit    of,    295. 

to  capital  stock,  amount  requisite  to  filing  articles,   293. 
surplus  profits,   what  are,   310. 

1117 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 

telegraph    corporations.       See    tit.    Telegraph     and     Telepboue 
Corporations. 

term  of  existence,   290. 

time  within   which   must  be   organized,    358. 

title  insurance.     See  tit.  Title  Insurance  Corporations. 

to    organize    within    a    year,    358. 

transfer    of    franchise    of    corporation    valid,    when,    361a. 

transfer  of  shares 

by  non-resident,   how   affected,    326. 

to  give  bond,  326. 
does   not  release   stockholder,    322. 
of  married  women,   325. 
of    water    or    irrigation    companies,    324. 
to  be  entered  on  books,   324. 

to  purchaser   on   sale   for  delinquent   assessment,    343. 
unknown    owners,    sale    of    stock    of    for    delinquent    assess- 
ments,   365. 
vacancy   in    office   of   directors,   how   filled,   305. 
wagon   road  corporation.      See   tit.   "Wagon  Road   Corporation. 
water    and    canal    corporations.      See    tits.    Irrigation    Corpora- 
tions;  AVater  and   Canal   Corporations. 
wharf.      See    tit.    Bridj:e,    Ferr.f,    \^'li:irf,    Chnte    and    Pier    Cor- 
porations. 
as  to,  528,  531. 
when   formation   complete,    296. 

will,    may    take    under,    when,    1275. 

<ORPORATIONS    TO    FURNISH    LIGHT    AND    HEAT 

duty    to   furni'sh    gas    or    electricity,    629. 

may   refuse  electric  current   for   electric   light,   when.   fiSOa. 

may   »•''<'"  =  '»   to   supply   gas,    when,   630. 

right    to    enter    buildings    for    inspection,    631. 

right  to   shut   off  supply   of   gas   or   electricity.    632. 

COSTS 

apprentice,    in    proceedings    agai'nst    for    misbehavior.    27  4. 
apprenticeship,  proceedings  in,  268. 
divorce,   in  proceedings  for,   137. 

homestead 

in    appraisement    of,    1259. 
in  proceedings   to  subject   to  claims,   12.t9. 
indemnity  against,   2776. 
lost   certificate   of   stock,    in    suit   to   obtain    duplicate,    32S. 

1118 


INDEX. 
.  [References  are  to  sections.] 

CORRECTION 

of    instrument    improperly    certified,    1202. 
CORRUPT   CONSENT.      See    tit.    Divorce. 
COTENANCY 

between  devisees,  1350. 

between   husband   and   wife,    161. 

waste  by  cotenant,   171.5. 
COTERMINOUS    OW'NERS 

mutual   obligations    of,    841. 

right  to  lateral  support,  832. 

right  to  line  trees,  834. 
COUNSEIj  fees.      See   tit.   Attorney  Fees. 
COUNTY 

chattel   mortgage   to   be   recorded   in   what,    2959. 

marriage    settlements    recorded    in    what,    179. 

mortgaged  property  in   transit,   deemed   located   in  what,    2960. 

property  of  common  carrier,   deemed   in   what,   2961. 
COUNTY  CLERK.      See  tit.   Clerk. 
COUNTY  COMMISSIONER 

acknowledgments  may  be  taken  by,  IINI. 
COUNTY   RECORDER 

acknowledgment   may    be    taken    by,    1181. 
COURT 

statements    to.      See    tit.    Stateiiieut. 
COURTESY 

not   allowed,    173. 
COVENANT.      See    tits.    Coveiiaiit.s    RinuiiiiK'    with    liSiiul;    Implied 
Covenants. 

agent's   authority    to   gK'e.      See    tit.    Agent. 

agreement  to  give,   1733. 

apportionment  of,   1467. 

damages    for   breach    of.      See    tit.    DaniaueN. 
as  to,   3304. 

form   of,    1732. 

implied  effect  of  use  of  word  "grant,"   1113.     i 

of  quiet  possession.  In  hiring,   1927,   1955. 

running   with    land.      See    tit.    Covenant.s    Riinninu'    with    I.anO. 
who  Is  and  who  not  bound  by,   146.". 

what    necessary    to    create,    1460-14G8. 
COVENANT    AGAINST   ENCUMBKANCES 

damages    for    breach    of,    3305. 
( OVENANT    OF    SEIZIN 

definition    of,    S304. 

1119 


INDEX. 
[References  are  to  sections.] 

COVENANTS  RUNNING  WITH  LAND.      See  tit.  Obllgrations. 

apportionment    of,     1467. 
as   to,    1460. 

covenant    to   pay    rent,    1463. 
covenants  for  benefit  of  property,   1462. 

covenants   run  witli   land  wliere  assigns   are  named,   14  64. 
transfer   of,    1468. 

what    covenants    run    with    land,    1461. 
w^ho  are  bound  by,  1465. 
CREDIBLE  WITNESS.     See  tit.  \Vords  auti  Plira.ses. 
CREDIT 

agent  accepting  liable  as  principal,   2243. 

given    to,    exonerates    principal,    233.5. 
auctioneer,   wiien   to   and   wlien   not   to   give,    2362. 
factor    may    give,    exception,    2368. 
factor's    sale    on,    2028. 
ship's  manager  cannot  borrow  on,  2389. 
slap-owners',  master  may  borow  on,   2389. 
CREDITOR.      See     tits.     Assig^nment     for     Benefit     of    Creditors  5 

Credit;   Debtor  and   Creditor. 
acceptance  by,  necessary  to  satisfaction,   wlien,   1473. 
acceptance   of  accord,   1523. 

of  part  performance,    1524. 
application   of  performance"^by,   1479. 

appraisement   of   homestead   on   petition   of,   when,    1245. 
avoid    act    of    debtor,    when,    3441. 
benefit   of   securities   held   by   sureties,    2854. 
contracts   of  debtor  are  valid  against,  when,   3431. 
debtor's  preference,    3432. 

gi'ft   causa   mortis   to    treated   as   legacy,   when,    1153. 
grantor   liable   to,    when,    2807. 

by    void    promise    of,    2820. 

indemnified,  when  not  exonerated,   2824. 

not  exonerated  by  mere   delay   of,   2823. 

when    exonerated,    2819. 

when  partially  exonerated,   2822. 
homestead    expenses    of    appraisement    to    be    paid    by,    when, 

1259. 
may   be   witness    to   will,    1282. 

mortgage   of  personal   property  void   against,   when,    2957. 
novation.     See  tit.  Novation. 

how  created  by,    1532. 

may    rescind,    when,    1533. 
objections   to    offer   must   be   made,   when,    1501. 

1120 


INDEX. 

[References  are  to  sections.] 

CREDITOR    (continued). 

oblig-ations  of,   as  to   thing-  offered,   1505. 

offer    of   performance   at   place    designated    by,    1489. 

offer   of  performance    to,    1488. 

offer    of   performance,    when    to    benefit,    1493. 

order  to  resort  to  funds,  when  made,   2899. 

partner  cannot  make  assignment   for,    24  30. 

liability    after    dissolution,    2453. 

special,  any,  when,   2490. 

postponed    to    other    creditors,    2491. 
performance  by  one  of  several  joint,   1475. 
performance  excused,  when,   1511. 

in    manner  directed   by,    1476. 
performance   to  void,   when,    2496. 
prevention    of   performance    by,    1513. 
receipt  by,  1499. 

refusal   to   accept   performance,    1515. 
relative    rights    of,    3433. 
release   by,    effect    of,    1542. 
rights    of,    2854. 

special,  liable  as   general   partner,  when,   2502. 
surety  and  title  to  secuvltics  held  by,  when,  2849. 

as   to,    generally,    2849. 

exonerated    by    what    acts    or    omission^    of,    2840. 

may    enforce    remedies    of,    when,    2845. 

securities   held   by   sureties    for   benefit   of,   when,    2854. 
title   of  thing  offered  passes   to,   when,    1502. 
transfer    for   benefit   of,    recordation,    1164. 
transfer   of   debtor  void  as  against,   when,    3439,    3440. 
transfer  to,  without  value  not  void,  3442,  3449,  3465,  3473. 
trust  fund  liable  to,  when,  859. 
trustees   for   benefit   of,    857. 
who    is,    3429. 

witness    to   will,    may    be,    1282. 
CROP 

mortgage   of.      See    tit.    Growius   Crops. 
tenant's    right    to    harvest,    819. 
CRUKI.TY 

apprenticeship    annulled    for,    275. 
divorce,  ground  for.  92,  98,   147. 
of   spouse   defined,    94. 

to    children    and    animals.       See    tit.    SocIetli'.<*    for    Pre\eiitioi 
of   Cruelty   to    Children    and    Aniinnl.H. 
coil  I.ATIVr:.      See    tit.    Corporations. 
voting,   307. 

3«  1121 


INDEX. 
[References  are  to  sections.] 

CURRENT    MONEY 

borrower   to   pay    in,    1912. 
CUSTODY 

of    children.      See    tits.    Divorce;    Infant    and    liifanoy;    Minors; 
Parent   and   Cliild. 

of   thi'ng   offered    in    performance,    1503. 
DAM 

right   to    raise,    1412. 
DAMAGES.      See    tits.    IJbel ;   Railroad    CorporationM. 

acceptance    of  principal   waives   claim    to    interest,    3290. 

acknowledgments,    1202. 

after   suit   brought,    3283. 

agent's  authority,   breach   of  warranty   for,   3318. 

allowed   by   the   code   exclusive   of   others,    3357. 

animals 

for    injuries    by.       See    tit.    AniinaLs. 

for    injuries    to,    3340. 
certain,    must   be,    3301. 
contract    fixing,    as    to,     1670. 
detriment,    what    is,    3282. 
exemplary 

in  action   for  injuries  to  ani'mal.'?,   3340. 

infant's   liability   for,   41. 

in    what   cases    allowed,    3294. 

lunatic's  liability  for,   41. 

when    recoverable    generally,    3294. 
for   breach   of   agreement 

to    buy    personalty,    3311. 

to  buy  realty,   3307. 

to  convey  realty,  3306. 

to  pay   for  personalty   sold,    3310. 

to   sell  personal  property,    3308,    3309. 
for  breach  of  covenant.      See  tit.   Covenant. 
for  breach   of  promise   of  marriage,    3319. 
for   breach    of   warranty   of   quality   of   personalty,    3313. 

for   special   purposes,    3314. 

of  warranty  of  title  of,   3312. 
for  carrier's   delay.      See   tit.   Carrier. 

breach   of  obligation   to  deliver,   3316. 

breach  of  obligation   to  receive,   3315. 
for   conversion,    3336,    3337. 
for    detaining    or    overcharging    by    wagon    road    corporation, 

518. 
for   dishonor   of  foreign   bill,   3234,   3238. 
for   employing   materials    of   another,    1030. 

1122 


INDEX. 
[References  are  to  sections.] 

DAMAGES    (continued). 

for  failure  by   tenant   to  quit  on   notice,   treble   rent,   3344. 
for  false   impiisonment.      See   tit.  False  Inipri.soumcut. 
for  future  injuries,   3283. 
for    injuries    in    duel,    3347,    3348. 
for   injury    to   timber,    3346. 
for   injury    to    trees,    3346. 
for  killing  sheep  by  dogs,   3341. 
for  libelous  publications.     See  ti't.   Libel. 
for  lienor's  conversion,  3338. 

for    malicious    prosecution.      See    tit.    Malleious    Proseeutwui. 
for    master's    breach    of    indenture.      See    tit.    Master    and    Ap- 
prentice. 
for  negligence  in  setting  fire,   3346a. 
for   refusal    to    carry,    482. 
for  seduction,   3339. 

for  treble   rent  against  tenant,   when,   3344. 
for    trustees    holding    over,    3335. 

for    violation    of    rights    of    citizens    in    places    of    public    ac- 
commodation   or    amusement,    52. 
for  wrongful  occupancy  of  realty,   3334. 
for  wrongs  generally,  3333. 

for  wrongs.      See   tit.   DamaKeiti   for  AVrongs. 
forfeiture,    relief    in    cases    of,    3122. 
holding    over,    damages    for    wilful,    336. 
in    action    other    than    contract,    3288. 
interest   as,    3287-3290. 

injuries   resulting  or  probable   after  suit   brought,    3283. 
interest,    acceptance    of   principal   waives,    3290. 
interest   as   damages,   as   to,   3287. 
limit   of  rate   of  compensation,   3289. 
limitation    of,    3358. 
limitation   of  damages,   3358. 
liquidated,    1670. 

liquidated   sum    for   breach    of  contract,   to   pay,    3302. 
market   value    as,    3353. 
may   be   recovered   by    whom,    3281. 
measure   of.      See    tit.    Measure   of   Dainai;es. 

as   to,   3300-3319. 
must    be    certain,    3301. 

nominal,    3360.  , 

penal  damages,  as  to,  3344. 

failure  to  quit  after  notice,   3344. 

for  injuries  in  duel,  3347. 

in    firing   woods,    3346a. 

1123 


INDEX. 
[References  are  to  sections.] 

DAMAGES    (continued). 

penal  damages,   for  injuries   to   trees,   etc.,    3346. 

wilfully  holding  over,   3345. 
property  of  peculiar  value,  3355. 
public   places,    for   denying   access    to,    54. 
reasonable,   must  be,   3359. 
relief  against  in   general,   2274,   2275. 
sheep-killing  dogs,   3341. 
specific    relief.      See    tit.    Specific    Relief. 
tenant,    when    li'atale    for    treble    rent,    3345. 
to   be   reasonable,   3359. 
value 

how    estimated   in    favor   of   buyer,    3354. 

how    estimated    in    favor    of    seller,    3353. 

of  property  of  peculiar,  3355. 

of  thing  in  action,   3356. 
who    entitled    to    in    general,    3281. 
wrong-doer  liable  in  uniting  materials,   1033. 
DAMAGING   TELEGRAPH    OR   TELEPHONE    PROPERTY.      Sec 

tit.    Telegraph    aud    Telephone    Companies. 

DATE 

deed,  delivery  of,  presumption  as  to,  1054. 
in  negotiable  instruments  necessary,  3091. 
nominal  in  negotiable  instrument,   3094. 

DAYS 

business,  what  are,  9. 

counted   in   computing   time,   what   are,    10. 

fraction   of,   14. 

holidays,    what    are,    7. 

of   grace.      See   tit.   Days   of   Grace. 
DAYS  OF  GRACE 

not   allowed    on    bill    of    excliange,    3181. 
DEATH 

distribution    of   common   property 
on   death   of   husband,    1402. 
on  death  of  wife,   1401. 

gift  in  view  of.     See  tit.  Gift. 

marriage   dissolved   by,    90. 

notice  of  dishonor  in  ignorance  of,  3146. 

of  devisee  before  testator,   1310,   1343,   1344. 

of  heir  before  devisor,   1399. 

of   husband   and  wi'fe,    effect   on    homestead,    1265. 

of  insurer,  effect  on   insurance,   2556. 

of   joint   guardian,    252. 

1124 


\ 


INDEX. 
[References  are  to  sections.] 

DEATH    (continued). 

of  maker  of  instrument  bearing  nominal  date,  3094. 

of  minor,  representative  may  disaffirm  contract.  35. 

of   parent   leaving   children    unprovided   for,    205. 

of  seamen,  who  entitled  to  wages,  2062. 

without    heirs,    etc.,    definition,    1071. 
DKBT.      See    tits.   Creditor;    Debtor. 

agreement    to    answer    for,    etc.,    of    another,    1624. 

encumbrance   included  in   word   "debt,"    1114. 

extinguished  by  payment,   1500. 

homestead    liable    for,    when,    1241. 

husband  not  liable  for  antenuptial   of   wife,    170. 

legacy   charged   with,   how,    1360,    1361. 

liability  of  beneficiaries  for  testator's,  1377. 

officers   of  corporation    liable   for,    316. 

partner  liqui'dating  may  collect,  2461. 

partner  may  require  application   of  prpoerty   to,   2405. 

pledgee  cannot   sell   evidences   of,    3006. 

separate    property    of    T*ife 

liable    for    her    own    debts,    171. 
not  liable   for  husband's   debts,    171. 

special   partner's   contribution,    liability    for,    2501 

stockholder   liable   for,    when,    322. 

successor    liable    for    decedent's,    140S. 

testator's  property,   how  disposed  of  in  payment   of  his   debts. 
1359. 
DEBTOR.      See   tits.   Assignnieut   for  Benefit   of  Creditors;   Cred- 
itor;  Fraudulent   Transfer. 

application   of   general   performance   by,    1479. 

contracts    of,    valid,    when,    3431. 

creditor  can  avoid  act  of,  when,  3441. 

definition    of,    3429. 

effect    of    directions    as    to    perfoimance,    1  176. 

fraudulent   misrepresentations    by,    to    pledgee,    2999. 

insolvent,    what    is,    3450. 

joint,  release  of  one,  effect  of,   131. 

offer   of   performance   by   or    for,    effect,    1488. 

performance 
by  joint,   1474. 
must  be   by   or   for,    1473. 
preferences    by,    3432. 

receipt,  may  require  on  payment,   1499. 

relative  rights  of  creditors,  3433. 

release    of,    by    creditor.s,    effect,    1541. 

rights   of,   when   performance   prevented,    1512-1515. 

1125 


INDEX. 
[References  are  to  sections.] 

DEBTOR    AND    CREDITOR 

assignment    for   benefit   of   creditor.      See    tit.    AsHlginncut    foi 
Benefit   of    Creditors. 

creditor's   riglit   must   be   judicially   ascertained,    3441. 

creditors,    relative    rights    of,    3433. 

debtor's    contracts    are    vali'd,    when,    3431. 
payments  in  preference,  3432. 

fraud,    how    determined,    3442. 

fraudulent    transfer.      See    tit.    Fraudulent    Transfer. 

transfer    presumed    to    be    fraudulent,    when,    3440. 

insolvency,   what   is,    3450. 

preference.     See   subd.   "payments   in   preference,"   this   title. 

relative    rights   of   creditors,    3433. 

who    is    a    creditor,    3430. 

who  is  a  debtor,   3429. 
DECEIT 

essential  elements   of  fraud,   1572. 

fraudulent,  liability  for,  1709. 

in  general,  1709-1711. 

renders  contract  voidable,   1567. 

upon  the  public,   1711. 

what    is,    1710. 

when   actionable,   1709-1710. 
DECK.     See   tit.   Ships  and  Sliippingr. 

freight  not  to  be  stowed  on,  2117. 
DECLiARATIOlV.      See    tits.    Honie.stead,    Declaration    of;    Wills. 
DECI.ARATION   OF   HOMESTEAD 

as    to    generally,    1263. 

by   other   than    head   of   tlie   family,    1266. 
declaration   must  be   recorded,    1268. 
declaration    must    contain    what,    1267. 
effect   of   filing  declaration    for   record,    1269. 
mode  of  selection,   1266. 

contents    of  what,    1263. 

declaration    must    be    recorded,    1264. 

tenure  by  which  homestead  held,   1265. 
DECREE   NISI.     See    tit.   Divorce. 
DEED.      See    tit.    Quitclaim    Deeds. 

interpretation    against    grantor,    1069. 

interpretation  of  irreconcilable  provisions,  1070. 

interpretation    of,    recitals    resorted    to,    when,    1068. 

presumption  as   to  time   of  delivery,   1055. 

quitclaim.      See    tit.   Quitclaim    Deeds.- 
DEED   ABSOLUTE 

in  fact  a  mortgage;  must  be  recorded  as  mortgage,   1172. 

1126 


INDEX. 
[References  are  to  sections.] 

DE    FACTO    CORPORATIONS.      See    tit.    Corporation.s. 
DEFAMATION.      See    tits.    Libel;    Slander. 

as   to   wliat  is,    44. 
DEFAULT.      See   tit.   Divorce. 

decree   of  divorce  not  allowed  on,   130. 

divorce   not   granted   by,    130. 
DEFEASANCE 

deed  absolute   made   on   is   mortgage,    2925. 
DEFECT 

certificate   of   acknowledgment,   action    to    remedy,    1201. 

depositor    must    indemnify    depositary    for,    1833. 

lender    must    indemnify    borrower    for,    1835. 

warranty  by   manufacturer   against  latent,    1769. 

will,    in    description    in,    141. 
DEFECTIVE   ARTICLES    OF    MANUFACTURE.      See    tit.    Negli- 
gence. 
DEFECTIVE     MACHINERY     FURNISHED     BY     MASTER.      See 

tits.    Master   and    Servant;    Negligence. 
DF^FINITION.      See  tit.  Words  and  Plirases. 

accord,  1521. 

adultery,    93. 

agency,    2295. 

bill   of  exchange,    3171.  * 

bottomry,   3294. 

charter   party,    1959. 

collusion,   114. 

condition    concurrent,    1437. 

condition   precedent,    1436. 

condition   subsequent,    1438. 

condonation,    115. 

connivance,    112. 

consignee,   2110. 

consignor,   2110. 

contract,  1549. 

corporation,    283. 

create  debts,   579. 

depose,   14. 

desertion,    95. 

detriment,   3282. 

duress,   1569. 

encumbrance,    1114. 

entire   mortgage   guaranty,    453bb. 

exchange,    1804.  , 

extreme   cruelty,   94.  ' 

factor,    2026. 

1127 


INDEX. 
[References  are  to  sections.] 

DEFINITION   (continued), 
fee,    762, 
freight,   2110. 
freiglitage,    2110. 
general  average,   2148. 
gift,    1146. 
good   will,    992. 
grant,    1053. 
guaranty,   2787. 
guardian,   236. 

habitual    intemperance,    106. 
head  of  family,   1261. 
hiring,    1925. 
holographic    will,    1277. 
impossibility,    1597. 
income,   74§. 
indemnity,   2772. 
insurance,    2527. 
interest,   1915. 
jettison,    2148. 
joint   interest,   638. 
letter  of  credit,   2858. 
libel,    45. 
lien,   2872. 
loan,  1884. 
month,   14. 

mortgage   insurance   company,  453bb. 
mortgage-participation    certificate.    453bb. 
mortgage,   2920. 
negotiable    instruments,    3087. 
novation,    1530. 
nuisance,   3479. 
obligation,    1427. 
olographic   will,    1277. 
partnership,    2395. 
personal    property,    14. 
pledge,    2986. 

policy  of  mortgage  insurance,   453bb. 
promissory  note,   3244. 
property,  14,  654. 
real   property,    14. 
recrimination,   122. 
respondentia,    3036. 
reversion,   768. 
satisfaction,   1523. 

1128 


^ 


INDEX. 

[References  ate  to  sections.] 

DEFINITION    (continued). 

section,    14. 

"security,"    as   used   in    mortgage    insurance   statutes,    4,53bb. 

ship,    960. 

slander,  46. 

succession,   13S3. 

surety,    28.31. 

testify,    14. 

transfer,    1039. 

undue    influence,    1575. 

ward,  237. 

warranty,    1763. 

wilful  neglect,   105. 
DEFIXITION   OF   OLOGKAPHIC    (HOLOGRAPHIC)    \VILI,S.   See 

lit.    ^Vills. 
DKFIiMTlOX    OF    TFRMS.      See    tit.    AVords    and    Phrases. 

as   to   generally,    14. 

"debts,"   policies   of   mortgage   insurance   are   not    of   the   com- 
pany, 453cc. 

"indebtedness,"    policies    of    mortgage    insurance    are    not    of 
the   company,   453cc. 

"month,"    14. 

"personal  property,"   14. 

"property,"    14. 

"real  property,"  14. 

"section,"   14. 

"will,"   14. 
DFGREE 

of   kindred,    how   computed,    13S9. 
DELAY 

deemed    deviation,    when,    2694. 

how   excused,    1511. 

in    performance    of    obligation,    damages,    1492. 

in   presentment   of   bill   of  exchange,   effect,    31S6. 
how   excused,   3219. 

in  presentment  of  check,   effect,   3255. 

in  presentment  of  notice  of  dishonor,  when  excused,  3156. 

in    protest,    how    excused,    3230. 

insurance,  notice  of  loss  to  be   given   without,   2633,    2637. 

of  carriers  for  hire,   2104. 

of  creditor  does  not  discharge   guarantor,   2S25. 

reasonable   grounds   for  rebuts   presumption.    126. 
nELEGATION    OF   AGENCY.      See    tit.    Ajtciit. 
DELEGATION    OF    POWER,      See    tit.    Agent. 

by    minor,    33. 

1129 


INDEX. 
[References  are  to  sections.] 

DELIIXai'KNT    ASSESSMENT 

action   to   recover  stock  sold   for,   347. 
sale   of   stock    for,    341. 
DELINQIIENT    NOTICE 

of   assessment   of   stock.      See    tit.    Assessnieut   of  Stock. 
DELIVERY 

constructive,    1059. 

contract    of,    in    w^riting,    provisions    applicable,    1626. 

i'n    escrow,    1057. 

of  deposit  by  joint  owners,    1827. 

demand  necessary,   1823. 

on   demand,   1822. 

where,   1824. 
of  freight 

to   holder   of  bill   of   lading,    2130. 

to  whom,   2118. 

where,   2119. 
of  gift  necessary,   1147. 
of  grood.s   sold 

buyer's  directions,   1757. 

expense  of,  1755. 

notice    of   election    as    to    mode    of,    1756. 
of   goods   sold,   when    to   be   made.    1753-1758. 

where,    1754. 
of  grant   necessary,   1054. 
of  pledge   necessary,    2988. 
presumption    as    to    time    of,    1055. 
thing  bought,  payment  for  on,   1778. 
time   of  creation   of  interest  deemed   to   be  on,   749. 
to    grantee,    necessarily   absent,    1056. 
DELIVERY.      See   tits.   Gift;   Sale;  Transfer. 

as    to,    1754. 
DELIVERY   OF   STOCK.      See   tit.    Certificates   of  Stocli. 

entry   in  books  of  corporation  of  stock   transferred.     See   tit. 
Certificates    of    Stock,    Transfer    of. 
DELITSION.      See    tit.    AVills     (Insane    Delusion). 
DEMAND 

agent  to  deliver  to  third  person  on,  when,  2344. 
deposit   to    be    delivered    on,    1822. 

need    not   be   delivered   without,    1823. 
employee 

not  bound   to  deliver  without,   1823. 

to    render    account    without,    1986. 
goods  sold  deliverable  upon,  1753. 
guarantor,   must  be  made  upon,   2807. 

1130 


INDEX. 
[References  are  to  sections.] 

DEMAND    (continued). 

lent   thing,   as   to   return   with,    ISO.'j. 

negotiable  instrument,   of  payment  to  be   made,   wlien,   3130. 

of  performance,   how   waived,   3004. 

pledgee   must   demand   before   sale,    3001. 
restoration   of  thing   wrongfully    taken    upon,   1712. 
servant   to    deliver    without,    2014. 
servant  to  pay  over  without,  2014. 
thing   lent    to    be   returned   without,    when,    1895. 
waiver  of  for  performance,  how  made,    3004. 
DEPOSIT.      See    tit.    Depositary;    Warehousemun. 
animals,    deposit   of,    1834. 
by   borrower.      See   tit.   Loan. 
delivery    of    thing   owned   jointly,    1827. 
depositary   must   deliver   on    demand,    1822. 

no  obligation   to  deliver  witliout  demand,  when,   1823. 

place  of  delivery,  1S24. 
for   exchange,   what    is,    1818. 
for    hire 

as   to  what  is,   1851. 

degree   of  care   required   of  depositary,    1852. 

lien    for    storage    charges,    1856. 

rate    of   compensation    for    fraction    of   week,    1853. 

stored   property   to   bp   sold,   when,    1857. 

termination  of  deposit,   1854. 
for    ,*«afe-kee|)iiigr 

extent    of    liability     for     negligence,     1840. 

indemnifying  depositary,   1833. 

injury    to   or   loss   of   thing   deposited,    1838. 

liability  for  damage  arising  from  wrongful  use,   1836. 

obligations  as   to  iise  of  thing  deposited,   1835. 

obligations   of   depositary   of  animals,    1834. 

sale   of   thing    in    danger   of   perishing,    1837. 

service   rendered   by   depositary,    1839. 

what   is,   1817.   ^ 
estray  and  lost  property   book,   1865. 
finder,  duty  of  to,  1865. 

liability   of,   1871. 

obligations    of,    1864. 

publication    by    of    thing   found,    1871. 

surrender    of    thing    found    to,    1,871. 

to    notify    owner,    1865. 

when    title    to    thi'ng    vests    in,    1871. 
for  exchange,   relation   of  parties,   1878. 

1131 


INDEX. 
[References  are  to  sections.] 

DEPOSIT    (continued). 

found  property,  claimant  to  show  ownersliip,   1866. 
gratuitous  deposit,   1844. 

as    to   what    is,    184  4. 

degree   of  care   required   of  depositary,    184  6. 

duties    cease,    when,    1847. 

involuntary  deposit,   1845. 
indemnity    to    be    given    by    depositor,    when,    1833. 
innkeeper  with  and   liability  of,   1859,    1860. 
involuntary    deposit,    how    made,    1815. 

duty  of  involuntary   depositary,    1816. 
joint,   by    two   or   more   persons,    1828. 
joint   delivery   of   to    depositaries,    1827. 
kinds  of  deposits,   1813. 
lien   for   storage,   1856. 
loan.     See  tit.   Loan. 
loss    or    injury   to,    liability    for,    1838. 
money   in   payment   of   debt,    1500. 
notice    to    owner    of    adverse    claim,    1825. 
obligations    of    depositary,    1822-1827. 
place   of  delivery,    1824. 
reward   to   finder,    1867. 
safe  keeping  for,  as  to,  1817. 
sale  of  thing  found,  when,  1869. 

of  perishable  property,   1837. 

of  storage  property,   1857. 
storage.      See   Deposit   for   Hire,    this   title. 
termination    of,    1S54. 
thing    wrongfully    detained,    notice    by    depositary    to    owner, 

1833. 
use    of   thing   loaned,    1890. 
voluntary   deposit,    how   made,    1814. 
warehousemen.     See  tit.  W'archouseiuen. 
DEPOSITARY.      See    tits.    Deposit;   Warehousemen. 
adverse  claim,   notice  by  to   owner,    1825. 
compensation    of,    1853. 
creditor  is,   when,   1505. 

duty  ceases,  when,   1847. 
delivery  by  notice  of  adverse  claim  to  owner,   1825. 

not  required  before  demand,  .1823. 

of    thing    owned    jointly,    1827. 

on  demand,  and  when  accused,   1822. 

place  of,  1824. 
depositor  must  indemnify,   when.   1833. 
gratuitous   oare    required    of,    1846. 

1132' 


INDEX. 
[References  are  to  sections. l 

DEPOSITARY    (continued). 
for    hire 

compensation  of,   1853. 
degree   of  care   required   of,    1852. 
finder    is    not,    1864. 
insurable   interest  of.      See   tit.   lu.surable   lutereNt. 

as  to,   generally,    2550. 
lien  for  storage,   1856. 

negligence  of,  limitation   of  liability   for,    1840. 
notice    by    to    owner    to    be    given,    when,    1826. 
of   animals,   duty   of   toward,    1834. 
opening   deposit,    obligation    of   as    to,    1835. 
pledge   for  reward,  when  is  a,  3000. 
sale  by  of  storage  property,    1857. 

of  thing  in  danger  of  perishing,    1837. 
seller   of  personalty  is   until   deliverj-,    1749. 

thing  wrongfully   detained,    how    depositary    exonerated,    1827. 
use   of  deposit,   obligation   as   to,    1835. 
liability    for    wrongful,    1836. 
DEPOTS.      See  tit.   Stations  and  Depots. 
DESCENDANTS 

of   a   person,    who    fire,    13  86. 
DESCENT.      See   tit.    Succession. 
DESCRIPTION 

agreement    to    compensate    for    errors    in,    1690. 
error   of    in    will,    how    rectified,    1340. 
DESERTION 

as  to  what  constitutes,   95. 
how  manifested,  96. 
DESTRUCTION 
of  will 

how  proved,   1293. 
is  a  revocation   of,   1292. 
of  written  contract,  effect  of,  1699. 
DETENTION 

of  person   or  property  avoids   contract,   when,    1569. 
of   property,    damages    for,    3335. 
DEVEI,OPMENT   AVORK 

on  mining  claim,  effect  of  neglect  to  perform,  1426s. 
DEVIATION.      See   tit.    Common   Carriers. 
DEVIATION   FROM   ROUTE 

of   carrier    of   property,    2117. 
DEVISE.      See    tit.    AVill. 

of    land,    how    construed,    1311. 

1133 


INDEX. 
[References  are  to  sections.] 

DE^  ISKS    AN1>    BE<ll'KSTS,      See    tit.     Wills. 
advancement    and    ademptions,    IS.'id. 
cannot  be   devested,   1342. 
conditional,    1345. 

condition   precedent,    wliat   is,    1346. 
effect  of,  1347. 

when    deemed   performed,    1348. 
death  of  devisee  of  legatee,  effect  of,  1343. 

interest  of  remainderman   not   affected   by,    1344. 
legacies,    nature   and   designation    of,    1357. 
annuities,    1357. 
demonstrative   legacies,   1357. 
general   legacy,   1357. 
residuary   legacy,   1357. 
specific  legaci'es,'  1357. 
vest,   when,   1341.   ' 
niLIGElVCE.      See    tits.    Appropriation   of   Water.s;    Care. 

DIRECTIOIV 

buyer's,  as  to  nietliod  of  delivery,  1757. 

carrier  to   follow^  whose,   2115. 

employee  to  follow,   1979. 

factor   to   follow,    2027. 

trustee   to   follow,    2258. 
DIRECTORS.      See    tit.    Corporations. 

of  co-operative  agricultural,   etc.,   association,    653p. 
number   of,    653p. 
removal   of,   653p. 

of   insurance   corporations    liable    for   loss,    when,    418. 
DIRECTORS,  BOARD  OF.     See  tit.   Corporatinna. 

cumulative    voting,    307. 

election    of    directors,    how    conducted,    307. 

exercises  power   of  corporation,    305. 

organization   of  board,   308. 

quorum,    305. 

quorum   of   directors    necessary,    305. 

regular   meetings,    how   called,    320. 

removal    from   office    of   directors,    310. 
DISAFFIRMANCE 

of  infant's  contract  for  necessaries.      See  tit.  Xeee.s.saricx. 
cannot  be,   when,   36. 
DISAFFIRMANCE   OF   CONTRACTS 

by    minor,    34. 

deed  of  Infant  not  void.      See  tit.  Deeds  of  Infants. 

when  minor  may  disaffirm,   35. 

1134 


INDEX. 
[References  are  to  sections.] 

DI.S!SOIilTIOJ\    OF   CORPOKATIOIM.     See    til.    Ci>rporatiuui«. 

i'lnpairing    obligation    of    contracts,    405. 
of  co-operative  agricultural,  etc.,  association,   653p. 
of   co-operative   corporations,    653x. 
DISSOLUTION   OF    iMARRIAGE.      See    tit.    Divorce. 

effect  of,   90. 
DISTRIBUTIOIV 

effect   of  advances    on,    1395-1399. 

of    capital    stock    on    dissolution    of    corporation,    312[a]. 
of    community    property.      See    ti't.    Ciuumiiuity    Properiy. 
of  property   of   Intestate,    1384,    1386. 
DITCHES,    FLUMES,   ETC. 

liability    of    joint    owners    respecting,    842. 

maintenance    of    flow    of    water    in    stream    to    canal    intakes, 

1410a. 
neglect   to  pay  portion    of   expenses,   action    to    recover,    843. 
DIVERSION.      See   tit.   Aiiproiirintiun. 

point    of    from    ditch,    1412. 
DIVIDEND.      See   lit.   CorporatioiiM. 
of  banking  corporations,  300. 

of   life   insurance   corporation,    how    made,    456. 
payment   to    married   women,    325. 
DIVORCE.     See    tit.    Marriage. 

acti'ons   for   divorce,   when   commenced,    S3. 
plaintiff   must  be   resident,    128. 
presumptions   do   not  apply,    129. 
proof   of  actual   residence    required,    129. 
adultery,    92,    93. 

alimony.      See    tits.    Alimony;    Allo^-aiieo. 
allowance    for    support    withheld,     when,     142. 
annulment,    82-86. 

appeal,    revision    on    of   order    di.sposi'ng   of    property,    148. 
by   default  not   granted,   130. 
causes    for,    8-2.  ^ 

adultery,    92,    93. 
as   to,    generally,    92. 
desertion.      See   Desertion,    this   title. 

as   to,   generally,   95. 
extreme  cruelty,   94. 

habitual    intemperance    for    one    >ear,    luT. 
children.      See   tit.    Parent   and    Cliilil. 

community    and    separate    i>roperty    subject    to     support     of, 

143. 
of  annulled    marriage,    84. 

1135 


INDEX. 
[References  are  to  sections.] 

DIVORCE    (continued). 

collusion,   what  constitutes,    114. 

presumption  of  from  lapse  of  time,   125,  126. 
coinuiuuity   property 

disposed   of,   how,    146. 

subject   to    support,   etc.,   of   children,    143. 
condonation,   as   a   defense,    l".^. 
avoided   by   concealment,    120. 
cures  deserti'on,   102. 
defined,    115. 
implies  what,   117. 
manifested,  how,  96. 

presumption  of  from  lapse  of  time,  125,  126. 
refusal    of    offer   of   is    desertion,    when,    100. 
requisite   to,    116. 
revoked,  how,   121. 
when  can  be  made,  119. 
connivauce 

manifested,    how,    113. 

presumed    from    lapse    of   time,    125,    126. 
cruelty 

desertion   induced  by,  effect  of,   98. 
extreme,   what  amounts   to,    94. 
custody   of  children    on,    order   for,    138. 
decree    of 

by  default  not  granted,  130. 
restores   parties    to   unmarried   state,    90. 
default 

decree  by  not  granted,   130. 
of  defendant,  proofs  to  be  made,  129. 
defense    to    action    for.    111. 
denied    on   showing   what,    111,    124. 
collusion,    114. 
condonation,    115. 

can   only  be  made,  when,   119. 

concealment  of  facts  in  certain  cases  makes  void,   120. 

evidence  of,  118. 

how   revoked,    121. 

implies   what,    116. 

requisites    of,    116. 

when  bar  to  defense,  123. 
connivance,   112. 
corrupt  consent,    113. 
lapse    of    time    establishes    certain    presumptions,    125. 

presumption   may  be  rebutted,   136. 

1136 


INDEX. 
[References  are  to  sections.] 

DIVORCE   (continued). 

denied  on  showing-  -what    (continued). 

limitation    of    time,    127. 

recrimination,    122. 
denied  on   wliat  grounds,   111. 
desertion 

absence   becomes  desertion,   wlien,    inn. 

consent   to   separation    voidable,    101. 

cured,    liow,    102. 

defined,   95. 

failure   or   refusal   of   wife   to   live   in   home  of  husV)and,    10.3, 
104. 

how  cured,  102. 

how    manifested,    96. 

in   case   of  cruelty  where   one   party   leaves   the   other,    98. 

in    case    of    cruelty,    is    committed    by    whom^    98. 

in   case   of   fraud   or   stratagem,   is   committed   by   whom,    97. 

induced   by  cruelty,   98. 

induced  by  fraud  or  stratagem,  97. 

refusal  of  reconciliation  amounts  to,  when,   101. 

refusal    to     abide     by      husband's      selection      of    homestead 
amounts  to,   103. 

selection   of  home  is  desertion,  when,   103. 

if  place  is   unfit,  and  wife   refuses   to   conform,   desertion   by 
husband,  104. 

separation   becomes,   when,    100. 
by  consent   is   not,    99. 

what  amounts  to,   9  6. 

who    deserts,    98. 
disposition    of   community    property.    116. 

duty   of   court   to   dispose   of,    147. 

of   homestead   on,    146. 

order   of  disposition,    147. 
revisi'on    of   on    appeal,    148. 
domicile 

fixed  by  husband,   103. 

refusal   of   wife   to   abide   by    is   desertion,    in."!. 
presumptions  none,   in   proof  of,   129. 

unfit,  husband's  selection  amounts  to  desertion,  104. 
effect  of  divorce,   91. 
effect    of   judgment    of    nullity,    86.^ 
expense    of   action    for,    13  7. 
extreme    cruelty,    94. 
grounds  for.     See  "cauees   for,"   this  title. 

1137 


INDEX. 
LRefei'ences  are  to  sections.] 

DIVORCE    (continuecl). 
grounds  for  denying,   111. 
habitual    intemperance,    what    i.s,    106. 

for   one  year,   107. 
homestead,    how    disposed   of   on,    146. 
.iudgiueut  of 

final  judgment  after  one  year,   132. 

interlocutory  judgment,   131. 
lapse   of  time,   what   pre.sumptions   establisli   by,    12.5,    126. 
legitimacy  of  isHuc 

on    divorce    for   husband's    adultery,    14  5. 

on   divorce   for  wife's   adultery,    145. 
limitation    of    actions    for,    125,    127. 

may   be   decreed  where  divorce   denied,   136. 
orders   respecting   custody   of  children,    138. 
presumptions    arising   from   lapse   of   time,    125.    126. 

resorted    to    in    executing    provisions    for    maintenance    and 
alimony,    141. 
recriniinsttiou 

condonaton  as,  123. 

defined,    122. 
relief   where   separation    is    denied,    136. 
residence 

actual,   proof   of   necessary,    129. 

length   of   plaintiff's   residence,    128. 

presumptions  do  not  apply  to,   129. 
none  in   proof  of,   130. 
security   for  maintenance   and   alimony,    140. 
separation 

amounts   to   desertion,   when,   100. 

not  desertion,   when,  99. 
support  of  wife  and  children  on  divorce  or  .separation  granted 

wife,    139. 
wilful  neglect,   must  exist  for  one  year,   107. 
wilful  neglect,   what   is,   105. 
DOGS.     See  tit.   Animals. 

killing   sheep,   liability   for,    3341. 
DOMICILE.      See   tit.    Divorce. 
guardian   to   select,    248. 
husband    may   select,    103,    155. 

unfit,  wife  not  bound   by,   104. 
in   divorce,   actual   must   be   proven,    129. 

requisites   for,   128. 
infant's,    214. 
unfit  selected  by   husband  amounts   to   desertion,   104. 

1138 


INDEX. 
[References  are  to  sections.] 

DOMIIVAIVT  TENEMEIVT.      See   tit.   Easements. 
DOI'BLE   INSURANCE.      See   tit.    Insurance. 
DOUBTFUIi  AVORDS 

in  contract,   1654. 

in   will,   1323. 
DOAVER 

not   allowed,    173. 
DRU-MvENNESS.      See   tits.   Contracts;   Divorce;  AVills. 

as   grounds   for  divorce,   107. 

damages  for  injuries  inflicted  in,   3347. 

liability  to  pay  debts  and  maintain  injured  party,   3348. 
DUPLICATE 

of  contract,   alteration   of  does  not   prejudice, -1701. 

of  will,   is  revocation,   1295. 
DURESS.      See   tit.  Contract. 

as   cause   for  annulment   of  marriage,   82. 

as   to  what  constitutes,    1569. 

contract   under  voidable,    1575,    1708. 
in  what  consists,   1569. 

rescission  because  of,   1689. 

will  procured  or  revoked  by,   1272. 
DUTY.     See  tit.   Obligations. 

to   inquire    into    the   treatment  of   minor  apprentice,    270. 
EARNINGS 

of  minor  child,   as   to,   generally,   169. 
illegitimate   and    unmarried,    200. 
legitimate   and    unmarried,    197. 

of  wife,  as  to,  generally,  168,  169. 
are  her  separate  property,   169,   170. 
not   liable  for  husband's   debts,   168. 
when  living  separate  and   apart   from   husband,    169. 
EARNINGS   OF  AVIFE.     See   tit.   Earnings. 

not  liable  for  husband's  debts,   168. 

when   living-  separate   and   apart   from   her   husband. 
EASEMENT,      See   tits.   Easements  and   Servitudes;   L,icen.se. 

apportionment   of,    807. 

as   to   what   pass   with    property,    1104. 

attached   to  land,   801. 

dominant   tenement 

action  by  owner  of,   809. 
definition   of,   809. 

enumeration   for,   801,   802. 

extent  of,   806. 

extinguishment,    how    made,   811. 

1139 


INDEX. 
[References  are  tu  sections.] 

EASEMENT    (continued). 

grantable,   by  whom,    804. 

held,  can  be,  by  whom,   805. 

irrigation,'  552. 

lateral  and  subjacent   support,   832. 

not  attached  to  land,   801. 

partition    of,    apportionment   of,    807. 

servient  tenement 

action  by  owner  of,  810. 
as  to  what   is,   803. 

transfer   of   property  carries,    1104. 

way.      See   tit.   Public  High-wa.vs. 

what  passes  by  conveyance   of   property,   1104. 

who  cannot  hold,   805. 
EASEMEXTS   AjVD   SERVITUDES 

action  bj"  owner  and  occupant  of  dominant   tenement,   809. 
by  owner  of  servient  tenement,   810. 

apportioning  easements,   807. 

dominant   tenement,   what  is,    803. 

extent  of  servitude,   806. 

how  extinguished,   811. 

owner  of   future   estate,   right   as   to   easements,    808. 

servient  tenement,  what  is,   803. 

servitude  may  be  granted,  by   whom,   804. 
may  be  held,   by  whom,   805.  » 

servitudes  which  attach  to  the  land,   801. 

servitudes  which  do  not  attach  to  land,  802. 
EJECTION    FOR    NON-PAYMENT    OF    FARE.      See    tit.    Ejection 
of  Passengrers. 

as  to,  and  when   wrongful,   2188. 
EJECTION  OF  PASSENGERS. 

for  non-payment   of   fare,   2188. 

for  refusal  to  pay  fare  or  surrender  ticket,  487. 
ELECTION 

corporate.      See   tit.   Corporation.s. 

day,  a  holiday,   7. 

grant   to  street  railway  near  time  of,   unlawful,  497. 

notice   of  as  to   delivery  of  chattel,    1756. 
ELECTRIC   CORPORATION 

franchise  for,   proceedings,   497. 
ELECTRICIT.Y 

railroad   may   use  as   motive   power,   465a. 
ELEVATED   RAILWAYS 

franchise  for,  how  procured,  492. 

supervisors   may  grant   franchise,    492. 

1140 


INDEX. 
[References  are  to  sections.] 

RMANCIPATIOK 

of  children,  as   to,   211. 
EMINKXT  DOMAIN 

crossing's   by   railroads,   condemnation    for,    472. 
in   general,    1001. 
EMPLOYEE.      See    tit.    Master    and    Servant. 
by  special  request,   1976. 
for  reward,  duties  of,   1978. 
gratuitous,  as  to  duties  of,   1975. 
under  written  power  of  attorney,   1977. 
KMPLOYMEXT.'    See  tits.  Master  and  Servant;  Service  Without 
Employment. 
as   to  what  is,   1965. 

confidential  employment,  obli'gations  of,  1992. 
contract   for   services   limited    to   two   years,    1980. 
degree  of  skill  required   of  employee,   198:?. 
duty  of  employee   for   his   own  benefit,   1979. 

for   reward,    1978. 

to  account,    1986. 
duty  of  gratuitous  employee,   1975. 
duty  of  railroad  compa.nies.     See   tit.   Kallroads. 
employee 

must   obey   employer,    1981. 

must  use  what  skill  he  has,   1984. 

not  bound  to  deliver  without  demand,    1987. 

responsible   for  neglig-ence,   1990. 

to  conform    to   usage,    1982. 

to  give  preference  to  employer,   1988. 
employer 

must   indemnify   employee,    when,    1969. 

to  indemnify  for  his   own  negligence,    1971. 
fellow-servant.^.      See   tit.   Fell«»>v-Servants. 
particular   employments 

ag-ent.     See   tit.   Agent. 

factors.      See   tit.  Factors. 

master  and   servant.      See  tit.   Master   and   Servant. 

mates   and   seamen.      See   tit.    Mates   and    Seamen. 

shipmasters.      See   tit.    Shipmasters. 

ship's   manager.      See   tit.    Ship's   Slanaser. 
surviving-   employee,   rights   of,    1991. 
termination    of   eniploymt'nt 

as   to  how  terminated,    1997. 

by  death  of  employer,   1996. 

by  employee,   for  fault,   2000. 

1141 


INDEX. 
[References  are  to  sections.] 

EMPLOYMENT    (continued). 

termination   of   eniployiiient    (continued), 
by    employer,   for  fault,   2001. 
compensation   of  employee   dismissed  for  cause,    2002. 

of  employee   leaving  for  cause,   2003. 
continuance   of  service   in   certain  cases,   1998. 
terminated  at  will,   1999. 
things    acquired-  by    employee    by    virtue    of    his    employment 
belong  to  his  employer,   1985. 
ENCUMBRAJfCE 

damages  for  breach  of  covenant  against,  measure  of,   3.305. 
grant,  as  revocation   in  favor  of,  when,   1229. 

how  far  conclusive,  as  to,   1107. 
imposed   upon   devised   property,    1301. 
includes   what,    1114. 
instrument 

when  not  void  against,   1228. 
when  void  against,  1228. 
lien  not  valid  against,  when,   3048. 
mortgage   of   real    property   not   enforced    against    subsequent 

purchaser,   when,    3394. 
resulting   trust   does   not  prejudice,   856. 

rights    of   under   devise    not    impaired   by   conveyance,    1364. 
transfers  void  against,  3440. 
ENEMY,  PUBLIC.      See   tit.   ^Var. 
cannot  be  insured  against,  2540. 
carrier  not  liable  for  damages,  etc.,  by,  2194. 
innkeeper,  not  liable  for  damages,  etc.,  done  by,  1859. 
prevention   of  performance  by,   effect,   1511. 
ENFORCEMENT  OF  TRUSTS.     See  tit.  Use.s  and  Trust-s. 
ENTICING  AAV  AY  APPRENTICE.     See  tit.  Master  and  Appren- 
tice. 
liability   therefor,   275. 
ENTIRETIES 

interest  by  the,   683,   686. 
tenancy   by,   between   spouses,    161. 
EQUIPMENTS 

of  ships.      See   tit.    Ships  and   Shipping* 
EQUITABLE  RELIEF.     See  tit.   Specific  Performance. 
EQUITABLE   REMEDIES.     See   tit.   Injunctions. 
EQUITY.     See  tit.  Homesteads. 
ESCHEAT 

intestate's  property  does,   when,   1386. 
proceedings  by   attorney-general,    1405. 

1142 


INDEX. 
[References  are  to  sections.] 

ESCHEAT    (continued). 

property  escheated   is  subject  to  charges,    1407. 
takes   place   to   state,   wlien,  1406. 
ESCROAV 

as  to  delivery  in,   1057. 
definition  of,   1057. 
ESTATE.     See   tits.   Estates  in  Real   Property;  Uses  and  Trusts. 
expectant,  qualities  of,   699. 
fixing-  time   of  enjoyment,   707. 
interest   in   real   estate,    701. 

classes  of   interest,   702. 
mere  possibility  of  an   interest,   700. 
notice   not  necessary  before   action,   when,    793. 
of  tenancy  at  will.     See  tit.  Tenancy  at  AVill. 
of  trustee   to  express   trust,   863. 
re-entry,  when  and  how  to  be  made,   791. 
subsequently   acquired   passes  by   will,   when,   1312. 
summary  proceedings  in   certain  cases,   792. 
termination   of,  as  to,  generally,   789. 
time  of  creation  of,  749. 

what  future   interests  are   recognized,   703. 
E.STATE  FOR  LIFE 

limitation  of  successive,   774. 
ESTATE  FOR  LIFE  OF  THIRD   PERSON 

when  a  freehold,   766. 
ESTATES   IN   REAL   PROPERTY.      See    tit.    Estates. 
estates  in   general,   761-781. 
kinds  of  estates,   761. 

estates  at  will,    761. 

estates  for  life,   761. 

estates  for  life  of  a  third  person,  when  a  freehold,  766. 

estates  for  years,   761. 

estates  in   fee   Simple.      See   tit.   Fee   Simple. 
as  to  generally,  762. 

estates   in   remainder.      See  tit.  Remainders. 

estates   of   freehold,    766. 

estates   of  inheritance,    761. 

future  estates,  what  are,  767. 
limitation   on  successive   estates   for  life,   774. 
reversions.      See  tit.  Reversions  and   Remainders. 
servitudes,   801-811. 

suspended   ownership,   770. 

suspension  by  trust,   771. 
termination   of  estates,   789-793. 

1143 


INDEX. 
[References  are  to  sections.] 

ESTATE    OF    DECEDENT.      See    tits.    Exeeiiiors     and     Admlnif)- 
trators;  Succession;  Wills. 

beneficiaries,   property   liable   for   obligrations,   ■when,    1.j77. 
chargeable   with   debts,  ■when,   1359. 
order  of  resort  to  property  for  payment  of,  1.359. 
E  STRAY 

finder  of  property,  as  to  duty  of  in  general,   1864-1872. 
EVIDENCE.      See    tit.    AVitne.sses. 
cer.fificate  a.s 

of  restoration   of  lunatic,   presumption  from  as  to  capacity, 

40. 
of  shipmaster,   to  exertions  of  seamen   to  save  vessel,  2058. 
certified  copies  of  articles  of  incorporation  as  evidence,  297. 
condonation  of,   118. 

divorce,    not    granted    on    uncorroborated,    130. 
in  probate  of  -vvdll.      See  tit.  "Wills. 
insurance,  of  loss,  2634. 
of  condonation   in   action   for  divorce,    118. 

ho^vv  revoked,  121. 
of  execution  of  instruments  not  ackno^wledged,   1195. 
of  handwriting,   how  proved,   57. 
of   invalid    or  insufficient  consideration,    1615. 
of  marriage,  how  proved,   57. 

oral  stipulations,  etc.,  superseded  by  written  instrument,  1624. 
record 

certified   copies   of,   as   evidence,   1207. 
inventory   of  wife's   property   as,    166.  ' 
of  location   of   mining   claim 
copies   of  as    evidence,    1426q. 
to   be   received   in    evidence,    1426q. 
register  of   partnership   names,   as,   2471. 

subscribing  witness,   how  instrument  proved,   by,    1196-1199. 
EVIDENCE   OF  CONSENT.      See   tit.   Marriage. 
EXAMINATION   OF   CORPORATION 
by   whom   to  be  made,    382. 
how   made,    383. 
EXCAVATION 

time  within  which  appropriator  of  waters  may  commence   on 
public  land,   1422. 
EXCHANGE 

bill  of.      See  tits.   Bill    of    Exchange;    Deposit    for    Exchange; 

Loan   for   Exchange;   Negotiable   Instruments. 
form  of  contract,  1805. 

1144 


INDEX. 
[References  are  to  sections.! 

EXCHANGE    (continued). 

of  money,    1807. 

rights  and   obligations  of  parties,   1806. 

what  is,    1804. 
EXCHANGK,   LOAX    FOR.      See    tit.    Loan    for    Exohange. 
EXCL.USIOIV   AXD   IXCLUSIOX.      See   tit.    Coniitutation   of  Time. 
EXECUTIOIV 

against  homestead.     See  tit.  Homestead. 

co-operative   association,   against,    653f. 

disaffirmance  of   infant's   contract,    35. 

executors   and   administrators.      See   tits.    Estate   of   Decedent; 
Wills. 

exemption   from   of  policy  of   life,   etc.,  insurance,    4.53k. 

exemption   of  estates  at   law   from,   766. 

franchise  of  corporation  may  be  sold  under,  388. 

homestead  not  subject   to,  when,   1240. 
subject  to,  when,   1241. 

lien  of  officers  on,   3057. 

mortgaged   personalty,    issuing  against,   2968-2971. 

of  apprenticeship  of  minor.     See  tit.  Master  and  Apprentiee. 

redemption   of   franchises   from,    392. 
EXECUTOR   AND    ADMINISTRATOR.      See    tits.    Estate    of    De- 
cedent; Will. 

according-  to   the   tenor,   1371. 

expense   of  administration,   order  for   payment   of,    1359. 

foreign,   satisfaction   of   mortgage   by,    2941. 

not  to  act  until  qualified,    1373. 

power  to  appoint,  void,  when,  1372. 

power  to  appoint   invalid,   1372. 

qualified,  not  to  act  until,   1373. 

wages  of  deceased   seamen,    2062. 
EXECUTORY   AGREI^MENT 

consideration  for,   1610. 
ascertained,   how,   1611. 
need  not  be  stated,   1610. 

covenants  w^hen   required   by,   1733. 

defined,   1661. 

for  sale  of  real  pi-operty,    1731. 

grounds   on   condition    precedent,    1110. 

instrument,   implied   warranty  of  sale,   1774. 

of  marriage   to  be   in    writing,   when,   1624. 

transfers   title,    when,    1141. 
EXEMPL.VRV  DAMAGES.     See  tit.  Daniaj^es. 

for    infringement    of    trade    mark.      See    tit.    'i'rade    .Marks    and 
Sigrns. 

1145 


INDEX. 
[References  are  to  sections.] 

JJXEMPTIOjV.      See    tit.    A.ssigument    for    Benefit    of    Creditors. 

homestead.      See   tit.    Homestead    Exemption. 

mortgage,   from   operation  of,   2965. 

of   mutual   life   Insurance   company,    453k. 

of  policy   of  life,    etc.,   insurance,   453k. 

property   exempt  does  not  pass  by  assignment   for  benefit   of 
creditors,   3470. 
EXERCISE   OF   VESTED   POWER 

as  to,   860. 
EXISTENCE     OF     CHILD     BEFORE    BIRTH.       See     tit.     Unborn 

Child. 
EXISTING   LAWS 

provision    similar   to,    how   construed,    5. 
EXONERATION.      See   tits.    Guardian  and  Ward;   Securitjship. 

of  carrier,  on  delivery  of  bill  of  lading,   2131. 

of  finder,  from  liability,   when,   1865. 

of    gratuitous   pledge-holder,   2995. 

of  guarantors,  2819. 

of   innkeepers,   1860. 

of  lender,   from   liability,    1893. 

of   owner,   from   claim   of  finder,   1868. 

of  partner,   on   renunciation   of  future  rights. 

of  shipmaster,   on  abandonment  of  ship,   2040. 

of  surety,   2824,   2845. 
EXPECTANCIES 

are  Insurable   Interests,   2549. 
EXPECTANT   ESTATES 

quality   of,    699. 
EXPENSES 

of  action  for  divorce,   137. 
EXPERT   TESTIMONY.      See    tit.    Wills. 
EXTENSION   OP   TIME.      See   tit.    Negotiable    Instruments. 

for  sale   of  delinquent  stock,   345. 
notice  of,   345. 

of  existence  of  corporation,   401. 
EXTINCTION   OF  LIEN 

by   conversion,    2910. 
EXTINCTION   OF  OBLIGATIONS 

ability  and   willingness   essential   to,    1495. 

application  of  general  performance,   1479. 

by  accord  and  satisfaction.      See  tit.  Aeeor«l  and  Satisfaction. 

by  acts  of  God.     See  tit.  Acts  of  God. 

by  conditional  offer,  not,   1494. 

by   novation.      See   tit.   Novation. 

1146 


INDEX. 
[References  are  to  sections.] 

EXTINCTION  OF  OBLIGATIONS   (continued), 
by  offer  made   in  good  faith,   1493. 
by   offer  of   partial   performance,    not,    1486. 
by   offer   of   performance,    1485. 

requisites  of  valid  tender.      See   tit.  Tender. 
by  part   performance,   when,    1524. 
by   performance,    1473. 

effect  of  directions  by  creditors,   1476. 

partial  performance,   effect   of,    1477. 

payment,   what   is,   1478. 

performance   by   one   of  joint  creditors,    1475. 

performance  by  one  of  several  joint  debtors,   1474. 
by   prevention    of   performance,    1511. 
by  release.     See  tit.  Release. 

by   satisfaction.     See   tit.  Accord  and   Satisfaction. 
by   whom  to  be  made,   1487. 

compensation  after  delay  in  performance,   1500. 
creditor's    retention    of    thing   which    he     refuses     to     accept, 

effect,   of,   1505. 
custody  of  thing  offered,   1503. 

effect  of  offer  upon  accessories  of  obligation,   1504. 
effect  of  preventing  performance,   1512. 

condition  precedent.      See  tit.   Condition  Precedent. 
effect  of  refusal  to  accept  performance  before   offer,    1515. 
extinction  of  pecuniary  obligations  by  deposit,    1500. 
objections   to  offer   to  be  made,   when,   1501. 
pecuniary    obligations,    extinction    by    deposit,    1500. 
performance  of  condition  precedent.     See  tit.  Condition  Prece- 
dent. 

as  to,   1498. 
prevention   of   performance.      See    tit.    Prevention   of   Perform- 
ance. 
production  of  thing  to  be  delivered  not  necessary,   1496. 
ratable   portion   of  consideration   not,   when,    1514.  ^ 

thing  offered   to  be  kept  separate,   1497. 
title  of  thing  offered,   1502. 
to  whom   to  be  made,   1488. 

when  debtor  induced  not  to  make  it  by  act  of  creditor,   1511. 
when   and   where  offer  to  be   made,   1489,   1490. 

when   prevented   or   delayed   by   act  of  creditor,    1511. 

when  prevented  or  delayed  by  irresistible,  etc.   cause,   1511. 

where   obligation   does   not   fix   time,    1491. 

written  receipts   may  be   rquird   on,   1499. 
EXTINGUISHMENT 

of  easements  and  servitudes,   811. 

1147 


INDEX. 
[References  are  to  sections.] 

EXTREME    CRUELTY'.      See   tit.    Divorce. 

what   is,    94. 
FACT 

actual  fraud  is  a  question  of,   1574. 

concealment  of  makes  condonation   void,   when,    120. 

fraudulent  intent,   is  a  question  of,   3442. 

mistake  as  to,  what  is,   1577. 
as  to   foreign   law,    1579. 
FACTORS.      See   tits.    Agent;   Employment;   Master   and    .Servant. 

actual  authority  of,   2368. 

barter  by,   2368. 

consignments    to.      See    tit.    Consignment. 

credit  by,  2028. 

power  to  sell  on,  2368. 

definition,   2026,   2367. 

deleg'ation   of  authority  by,   2368. 

guaranty   by,   2794. 

guaranty  commission,   liability,    2029. 

insurance  by,  2368. 

liability  of  under  guaranty  commission,  2029. 
cannot   relieve   himself  of   liability,    2030. 

lien  of,  3053. 

mortgage  by,   2368. 

must  obey  orders,   2027. 

obedience   required   from,   2027. 

ostensible  authority  of,  2369. 

pledge  cannot  be   made  by,   2368. 

sale  by 

for  reimbursement,   2027. 
on  credit,   2028. 

what  is  a  factor,  2368. 
PAILIRE    OF    COXSIDERATIOX.      See    tit.    Recovery     Back     of 

Money  Paid. 
FAIR.      See   tit.   Agricultural  Pair   Corporation.s. 

refusal  of  admis.sion  to,   53. 
FAIR  CORPORATIONS.   See  tit.   Agricultural  Fair  Corporations. 
FALSE    CERTIFIC.VTES.      See    tits.    Certificates    of    Stock;    Cor- 
porations. 
FALSE   PROSPECTUS.      See   tits.    Corporations;   Promoters. 
FARE.      See    tit.   Common   Carriers   o£  Passengers. 

as   to  when  payable,   2187. 

ejectment    for   non-payment.      See    tit.    Ejection    for    Xon-pay- 
ment  of  Fare. 

not  payable  after  ejection,   2190. 

rates   of   street   railroads,    501. 

1148 


INDEX. 
[References  are  to  sections.] 

FARRI.      See    tit.   Homestead. 

FATHER.      See   tits.    Parent  ami   Child;    Siu-tession. 

FEE.     See  tit.   Vested  Fee. 

FEE   SIMPLE 

conditional   fees  abolished,    76.3. 

estates   tail  abolished,    763. 

title   presumed    to   pass,    when,    1105. 

what  is,  762. 

words  of  inheritance  unnecessary   to  create,   1072. 

FEE  TAIL 

abolished,   763. 
fp:es 

recorder's,   116.5. 

FELONY 

ground  of   divorce,   92. 

limitation  of  action   for  divorce  for  conviction   of,   124. 
FELLOW-SERVANTS.      See    tit.    Master    and    Servant. 
FEMALES 

attain  majority,   when,   2.5. 
of  fifteen  years  of  age,   may   marry,   56. 
FEME   COVERT.     See   tits.   Hn.sband  and  AVife;  Married  Women. 
FENCES 

coterminous  owners  mutually  bound  to  eciually  maintain,  841. 

division,   801,   841. 

easement,   801. 

on   boundary  is  common   property,   830.        / 

railroad 

as   to  duty  and   liability   respectinK,   485. 

may    recover    damages   for    failure    of    owner     to    maintain, 

when,    485. 
to   pay  damages   for  failure   to   maintain,    485. 
tenant  for  life,  to  repair,   840. 
FERRIES.      See    tit.    Bridges,    Ferry,    AVliarf,     Chute,     and     Pier 

Corporation.s. 
FICTITIOUS 

name    of   partnership,    2466,    2467. 
payee,   in   bill    or  negotiable   instrument,    3103. 
FILING.      See   tit.    Corporations. 

of  affidavit  of   sale   of   delinquent   stock,    347. 
of  articles  of  incorporation,    206. 
duty  of  secretary  of  state  on,  296. 
erroneous,   how   corrected,    363 [a]. 
of  inventory  of  wife's   separate  property,   165,    166. 

1149 


INDEX. 
,  [References  are  to  sections.] 

FIXAL  JUDGMENT.      See   tit.   Divorce. 

when   granted   in  divorce,    132. 
FINANCIAL.    STATEMENT 

to  be   made  to  stockholders  of  corporation,   when,   302a. 
FINDER 

abandoned    thing,   of,   1885.  i 

appraisement  of  property  found,   1864. 
claimant,    to   prove   title,    1866. 
duty  of,   1865. 

estray  and  lost  property   book,   1865. 
liability   of,    1871. 

may   put   property    found   on   storage,    1868. 
reward  for,   1867. 
sale   of  property   found,   1869. 
surrender  of  thing  found,   1869. 
title   to   thing  found,   vests   in,   when,    1871. 
to  notify  owner,  when,   1865. 
FINDING 

claimant  to  prove  ownership,   1866. 
duty  and  obligation  of  finder,   1865. 
may  put  thing  found  in  storage,   1868. 
may   sell    thing   found,    when,    1869. 

how  sale  to  be  made,   1870. 
property  vests   in  owner,   when,   1871. 
thing   abandoned,    1872. 
to   notify   owner,   when,    1865. 
FINE 

for  cruelty   to   children  and   animals,    607b. 
FINES,   PENALTIES,   AND   FORFEITURE 

in    proceedings    for    cruelty    to    animals,    etc.,    and    disposition 
of,   607e. 
FIRE,  CORPORATIONS  TO  DISCOAER 

laws   and    ordinances    relating   to    fire    department    to    govern, 

453b. 
not  to  interfere  with  fire  department,  453a. 
powers  of,  453a. 

right  of  way  when  running  to  fires,   453b. 
yearly  meetings   of  such  corporations,   453c. 

assessments,   how   collected,    453c. 

fixing  expenses,   453c. 

notice  of  meeting,   453c. 

payment   of   employees,    etc.,   how    provided    for,    453c. 

power  of  majority  present,  453c. 

proceedings   at  such    meetings,    453c. 

who  may  vote  at,   453c. 

1150 


INDEX. 
[References  are  to  sections.] 

FIRE   IIVSURAIVCE 

acts  of  insured  subsequent  to  policy,   2755. 

alteration   increasing  risk,   2753. 
not  increasing  risk,  2754. 

investment   of  funds  of,   421,   421[a]. 

measure  of  indemnity,  2756. 

total  and  partial  loss,   2757. 

value  of  interest  in  policy,  how  fixed,   2757. 
FIRE,    LIFE,    HEALTH,     ACCIDENT,     AND     MARINE     INSITR- 
ANCE    CORPORATIONS 

of  investment  of  funds  of,   421. 
FIRE,     MARINE,     AND     TITLE     INSURANCE.      See    tit.    Mutual 
Life,   Health,    and    Aeeirteut    Insurance    Corporations. 

accumulation  of  surplus  funds,  432. 

amount   of  risk  to  be   taken,   428. 

amount   to  be  reserved  by  corporations  with   less   than   $200,- 
000   capital,   430. 

capital   to   be   paid    in    twelve    months,    424. 

certificate  of  capital  stock  paid  up  to  be  filed,   425. 
within   what   time  to  be   filed,   425. 

dividends,   from  what  made,   reservations,   432. 

funds,   how   invested,    420,    421  [a],   427. 

impairment    of   surplus    funds,    restoration,   432. 

payment  of  subscription,  424. 

property   which    may   be    insured,    426. 

reserve   before   dividend,  as   to,   429. 

amount    to    be    reserved   by   a   corporation     with     less     than 
$200,000    capital,    430. 
FIRING   AVOODS 

damages  for,   3346a. 
FIXTURES.      See    tits.    Appurtenances;    I^au«lloril    and    Tenant. 

appurtenances.      See  tit.    Appurtenances. 

attachment  to  mines,  are  fixtures  when,    661. 

definition  of,   660. 

fixtures  attached   to   mines,    661. 

In  general,  1013. 

mortgage   lien    on,    2926. 

ownership    of,    1013. 

what  are,   660. 

when  thing  deemed   affixed,    660. 
FLUMES.      See    tit.   Ditches,  Flumes,   Etc. 
FORCE.      See   tit.   Duress. 

right  to  use,   50. 
FORCIBLE     ENTRV     AND     DETENTION.      See    tits.    Damages; 
Ejectment. 

1151 


INDEX. 
[References  ai'e  to  sections.! 

FORECLOSURE.      See    tit.    Mortgage,  Foreclosure. 

as   to,   2932-2967. 
of  mortgages,   2932. 
of  riglit  to  redeem  pledge,  3011. 
FOREIGN.      See   tit.   Allen. 

bills.      See   tit.  Foreisn  BilLs. 
building  and  loan  associations,    645. 
corporations.      See   tit.    Foreign   Corporations. 
law,   mistake  of,   1579. 
navigation,   defined,   962. 
ship,  defined,    963. 
FOREIGN   BILLS 

damages   allowed   on   dislionor,    3234. 

how    estimated,    3234. 

rate   of   damages,    3235. 

where   expressed   in   foreign   money,    3238. 
declaration  before  payment  for  honor,   3233. 
definition   of,   3224. 
dishonor,  damages  allowed  on,   3234. 

how  estimated,   3237. 

rate  of,  3235. 

where  expressed  in  foreign  money,   3238. 
interest   on  amount  of   protested  bill,    3236. 
payment  for   honor,   declaration   before,    3233. 
protest  necessary,   3225. 

by   whom  to  be  made,   3226. 

how  made,  3227. 

notice   of,   how   given,    3231. 

waiver  of,   3232. 

when   excused,   3230. 

when  to  be  made,   3229. 

where  made,   3228. 
FOREIGN       CORPORATIONS.         See    tits.       Corporations;      Life. 

Healtb,  Accident,  and   Annuity,  Etc. 
articles  of  Incorporation 

certified  copy   to  be   filed  with   secretary   of  state,   408. 

fees   to  be  paid  on  filing  articles,   409. 

penalty   for  failure   to   file,    410. 
certified   copy   of  articles   of   incorporation    to   be    filed,    408. 
designation  for   services,   revocation   of,    406. 
designation  of  person  on  whom  process  may  be  served,  405. 
fees   to   be    paid   by   on   filing   certified   copies   of   articles,    409. 
foreign   railroads,   rights  in   state,   407. 
penalty   for   failure   to   file   certified   copies   of  articles,   410. 

1152 


INDEX. 
[References  are  to  sections.] 

FOREIGN  CORPORATIONS    (continued). 

proof   of  foreign   corporation,   406. 

service  on   secretary   of  state,   when   valid,    405. 

statute   of  limitations   in   favor  of,   406. 

time  of  filing-  articles,   408. 
FOREIGIV    IXSITRANCK   CORPORATIOIVS 

to  have  capital  stock  of  one  hundred  thousand  dollars,  when, 
420. 
of  two  liundred   thousand  dollars,  wlien,  419. 

valuations   of   policies   of,   447,    449-. 
FOREIGN    L, AAVS 

mistake    of,    1579. 
FORFEITURE.       See     tits.     Apin-«»i»riation;    Corporations;    Fran- 
chise;   Insurance    Corporation.s,   etc. 

as    applied    to   appropriated   waters,    1419. 

conditions    involving,    how    construed,    1442. 

contract  for,   of   property   subject  to   lien,   2889. 

conveyance   in   excess   of   title,   does   not  work   a,    1108. 

of  franchise   of  railroad   by  failure   to  operate,   468. 

of  policies  of  insyrance,   2765. 

of  powers  ofcorporation,  by  non-user,  468,502. 

of  servitude,   by   non-user,   811. 

of   street  railroad.      See    tit.    Street    Railroad. 

of  wages   of  seamen,   2063.  ' 

relief  in  case  of,  3275. 
FORGETFULNESS.      See    tit.    \Vllls. 
FORM 

of  certificate  of  acknowledgement,   1189. 
by  attorney  in  fact,   1192. 
by    corporation,    1190. 
by  married  women,  1191. 

of  covenant   in  executory  contract,    1734. 

of   grant,    1092. 

of  marriage  solemnization,   70. 

of   mortgage   of  personalty,    2956. 

of  mortgage  of  realty,  2948. 

of  notice   of  assessment,    335. 

of  notice  of  delinquency,   337. 

of  notice  of  dishonor,   3143. 

of   notice   to   quit,   to   tenant  at   will,   789. 
FUANC'HISE.       See    tits.     Corporations;    Wagon    Roail    Corpora- 
tions. 

execution    sale    of,    place    of,    393. 

duties   of   purchaser  at,    389. 
\ 

■■'  1153 


INDEX. 
[References  are  to  sections.] 

FRANCHISE    (continued). 

extension    of   corporate   existence,    401. 

filing-  certificate   of  certified   copy,    401. 

how    made,    401. 
for  construction  of  road   for  horseless  carriages,  etc.,   524. 
forfeiture   of   railroad,    468. 
is  property,  388. 

majf  be   sold  under  execution,   388. 
of   railroad,   forfeiture   by   failure   to   operate,    468. 
of   street   railroad.      See    tit.    Street   Railroad    Corporations. 
of  telegraph  a.nd  telephone  companies,   537. 
railroads  may  sell  to  other  railroads,  494. 
redemption    of,    392. 
redemption   of,   from   sale,   392. 
sale    of 

liability   under   same  as  before   sale,   391. 

purchaser   may    recover   penalties,    etc.,'   390. 

purchaser   to   transact  business   of   corporation,    389. 

where    to   be   made,    393. 
FRATERNAL.      CO-OPERATIVE      SOCIETIES.      See    tit.    Mutual 

Benefit   and   Life   Associations. 
are  within  the   statute,   451. 
FRATERNAL    CORPORATIONS.      See    tits.    Fraternal    Societie.s; 

Religious,    Social    and    Benevolent    Corporations. 
as  insurance  associations,  452a,   453. 
mutual  life,   etc.,    insurance   corporations,    437-452. 
FRATERNAL    SOCIETIES 

as   insurance  associations,   452a,  453. 
exempt  from  insurance  laws,  451. 
FRAUD.      See   tit.    \Aills. 

actual  or  constructive,   1571. 

actual  fraud  is  what,  1572. 

constructive    fraud,    as    to   what   constitutes,    1573. 
agent  no  authority  to  defraud  principal,  2306. 
as   affecting   right   to    specific  performance,    3391. 
as   ground   for  annulment  of  marriage,    82. 
by-bidding,  as  a  species  of,   1797. 
constructive,    as   to,    1573. 
constructive   or  actual,    1571. 
contract  exempting  one  from  his  own,   void,    1668. 

obtained   by,   1568,   1569,   1572,   1573. 

prevented  from  being  put  in   writing  through,   enforceable, 
when,    1623. 
deceit  as  an  element  of,  1709-1714. 

1154 


INDEX. 
[References  are  to  sections.] 

FRAUD    (continued). 

desertion  induced  by,  97.  ^ 

disregarding   erroneous   parts   of   written    instrument,    1640. 

on  oral  contract  required  to  be  in  writing,   1623. 
enforcement  against  fraudulent  party,   1623. 
exemplary  damages  in  case  of,   3294. 
in  apprenticeship,   ground   for  annulling,   275. 
in    marine    insurance.      See    tit.    Marine    Insurauce. 

valuation  under,  2736. 
in  insurance,  as  to,  2629. 
instrument    procured    through 

avoided   by  judgment   creditor   only,  when,   3441. 

deemed   obtained    through,    wlien,    1568,    1572,    1573. 

power   to   revoke,   when,    1229. 

voidable,    1566. 

when  void  against  creditor,   3439. 

when    void    against   purchaser,    1227. 
insurance 

omission   to   communicate   avoid.s,    2306,    2310. 

return   of  premium   for,   2619. 
insurer,   liable   for   loss   tlirough,   when,    2629. 
intent,   a   question    of   fact,    3442. 
interest  as   damages   in   case   of,    3288. 
marriage   contract   procured   througli,   58 

ground   for  annulling,    82. 
pledge,  value  misrepresented,   2999. 
rescission    for,    1689. 

separation    produced    by,    desertion,    97. 
specific    performance,    riglits    of    affected    by,    3391. 
trust   arising   from,    2224. 
trustee   guilty   of,   in   what   cases,   2234. 
will   procured    or   revoked   by,    effect   of,    1272. 
FRAUD   AND    MISTAlvE.      See    tits.    Fraud;    Ulistalte. 
FRAUDS,  STATUTE  OF.     See  tit.   Statute  of  Frauds. 

as  to,   generally,   1623-1627. 
PRAUDULEXT   CONA'EYAXCE.      See   tit.    Fraudulent   Transfers. 
FRAUDULENT  INSTRUMENTS.     See  tit.   Fraudulent  Transfers. 
FRAUDULENT    TRANSFERS.      See    tit.    Unlawful    Transfer. 
assignment  for  creditors.      See   tit.  Assignment   for   nenellt   of 
Creditors. 

when    void,    3457. 
avoidance  of,  by  creditors,  when,  3441. 
bottomry,  delivery  is,  when,   3440. 

1155 


INDEX. 
[References  are  to  sections.] 

FRAUDULENT    TRANSFERS    (continued), 
chattel  mortgage,  3440. 

as   a,    2957-2959. 

delivery    Is,    when,    3440. 

transfer  without  valid,    when,    3442. 
creditor's   right  to  be  judicially  ascertained,    3441. 
creditor  may  avoid,   when,   3441. 
debtor,  contract  of  valid,   when,   3431. 
definition    of,    3439. 

delivery,   necessary  of   personal   property,    3440. 
fraud,    a    question    of    fact    for    jury,    3442.  , 

judicial  proceedings,   is,   when,   3439. 
lien   is,  when,   3440. 
mutual   fraud,    effect    of,    1228. 
of  realty,  wliat  is  and  what  is  not,   1227,   1228. 
presumption  as  to,    1135. 

as   to  in  absence  of  delivery,   3440. 
purchaser   having   notice,    rights   of,    1227. 
question  of  fraud,  how  determined,  3442. 
references,   valid,   wlien,    3422. 
reimbursement   of  purchaser,   3440. 
resei-vation     of     interest    in    assignment    for    creditors, 
of,    3457. 

of  power  of  revocation,   effect  of,   1229. 
respondentia,   delivery   is,  when,    3440. 
ship  or  cargo,  delivery  not  necessary,   3440. 
special  partnersliip,  conveyance  by   is,  wlien,   2496. 
void,    when,    3439. 
voluntary  transfer. 

is,    when,    3442. 

valid,    when,    3442. 
what  transfers  are  fraudulent,   3439. 
what   transfers   presumed   fraudulent,    3440. 
wines,    delivery   of  not   necessary,    3440. 
FREEHOLD     ESTATES 

estate  for  life  of  a  third  person  is,   wlien,   766. 
what  are,   765. 
FREIGHT.      See   tit.   Carriers   of   Property. 

delivery  of,  as  to,  generally,   2118-2122. 
FREIGHTAGE 

apportionment   of  by  contract,   2140. 

according  to  distance,  2142. 

no  objection  on  partial  delivery,   2141. 
carrier's  lien   for,   2144. 

1156 


INDEX. 
[References  are  to  sections.] 

FREIGHTAGE    (continued). 

consignee  liable  for,  when,  2138. 

consignor  liable  for,  when,   2137. 

definition  of,  2661. 

on   natural  increase   of  freight,   2139. 

freight  carried   further   than   agreed,    2143. 

when   to  be   paid,   2136. 
FRIENDLY,   ETC.,    SOCIETIES.      See    tit.   Religioiis,    Social,    ami 
Benevolent    Corporations. 

amount  of  land  that  may  be  held  by,  596. 

as  insurance  associations,  452a,  453. 

limitation  of  amount  of  land,  596. 
FRUIT-TREES.      See   tit.   Tree.s. 
FURTHER    ASSURANCE.      See    tit.    Covenants. 

covenant  for,    1733. 
FUTURE    CONTINGEIVT    ESTATES 

how   created,    773. 
FUTURE   CROP.      See    tit.    Chattel   Mortgage. 
FUTURE   ESTATE 

contingent,  how  created,  773. 

rights    of   owner   of   easeinents,   808. 

what  is,    767. 
FUTURE    INTEREST 

as  to  what  is,   690. 

certain  future   interest  not  to  be  void,   697. 

classes   of,    693. 

contingent    interests,    695. 

how  defeated,   740. 

lien  on,    2883. 

perishable    property,    how    protected,    947. 

taking  effect  on  happening  of  contingency,  742. 

two  or  more  future  interests,  696. 

vested  interests,   694. 

void  when   suspends   power  of  alienation,    716. 

what  are   recognized,    703. 

what  is,   690. 

when   defeated,   739. 

when   not  defeated,    741. 
GAME 

as  to  right  to  take,  801,  802. 
GAMING 

insurance  of  void,   2558. 
GAS    CORPORATIONS.      See    tit.   Corporations    to    Furnish    Light 
and    Heat. 

application   for  gas   to   use,   629. 

1157 


INDEX. 
[References  are  to  sections.] 

GAS  CORPORATIONS    (conti'nued). 

deposit  as  condition  for  furnisliing,   630. 
inspection    of    meters 

agent   of  corporation    may   inspect,    631. 

refusing,  liability  for,  631. 
refusal 

to   furnish    gas,    penalty   for,    629-630. 

to   pay  for  gas,  sliutting  off,   630a. 
right   to    inspect,    631. 
GENDER 

of  words  in  code,  14. 
GENERAL    AVERAGE.      See    tit.    Marine    lusiirauee. 
adjusted    how,    2152. 
application    of    rules,    2155. 
as   to,    2744. 
definition    of,    2148. 
goods  stowed  on  deck  of  ship,  2154. 
in  general,  2148-2155. 
insurance,   free   from,    2711. 
jettison.      See    tit.    Jettison. 
loss,   how  adjusted,   2152. 

how    borne,    2151. 

manager  may  adjust,   2388. 
marine   insurance,   liable  for.      See   tit.   Marine   Insurance. 

as    to,    generally,    2707,    2743. 
shipmaster  may  adjust,  when,   2388. 
things    stowed   on   deck,    2154. 
values,   how  ascertained,   2153. 
GIFT  IN   VIEW  OF  DEATH.      See   tit.  Gifts. 
GIFTS.      See   tit.   AVills. 

ademption    of   legacy,    when,    1357. 
causa    mortis 

defined,    1149. 

effect    of    will    on,    1152. 

is   legacy,   when,   1153. 

presumed,    1150. 

revocation   of,    1152. 
community    property    of,    172. 
definition   of,    1146. 
delivery  essential,  1147. 
effect  of  will  upon  gift,   1152. 
fraud   in,   what   is,   1149. 
how    made,    1147. 
in  view   of  deatli.      See   "Causa  Mortis,"   this    title. 

1158 


INDEX. 
[References  are  to  sections.] 

GIFTS    (continued). 

made    how,    1147. 

not  revocable,   when,    1148. 

presumed    to    be    in    view    of    death,    when,     1150. 

revocation 

as   to,  generally,    1151. 

bona   fide   purchaser,    effect    on,    1151. 

causa   mortis   gift,    1151. 

how   made,    1147. 

in  view   of    death,    1150. 

not    revocable,    when,    1148. 

subscribing-  witness,   may  be   made  to,   1282,   1283. 

to  subscribing  w^itness  to  will,   1282. 

treated   as    legacy,    when,    1153. 

when  presumed  to  be  in  view  of  death,  1150. 
GIRLS.      See    tit.    Females. 
GOOD   FAITH 

advance  made  in,  by  agent,  indemnification,   2344. 

agent  bound  to  act  in,   when,   2343. 

offer   of   performance   must   be   made    in,    1493. 

partner 

highest   required   of,   2411. 

when  bound  by  act  not  made  in,  2431. 

principal  bound   to  person  acting  in,   2334. 

trustee  must  act  in  highest,   2228. 

what  constitutes,   15. 
GOOD   WILL. 

is    property,    655,    993. 

of  business,    992. 

partner    cannot    dispose    of,    2430. 

sale  of  in  restraint  of  trade,  1673,   1676. 

subject  of  ownership,  655. 

warranty   on   sale   of,   1776. 
GOOD   WILL   AND    NAME 

is   property,    993. 
GOOD    AVILL    OF    BUSINESS 

transfer   of,    993. 
GRACE.     See   tit.   Days  of  Grace. 
GRANT.      See   tits.   Conveyance;   Transfer. 

mortgage    not   a,    1054. 
GRANT    OF    REAL    PROPERTY 

form    of,    1092. 

1159 


INDKA. 
[References  are  to  sections.] 

GRANTOR 

interest   remaining  in  grantor  of  express  trust,   866. 
name   of   changed,    how  to   execute,    1096. 
of   trust   property,    title    of,    865. 
GREATER 

contains    less,    3536. 
GROWING  CROPS.      See    tit.    Morfsase   of   Personal    Property. 
GUARANTY 

acceptance   of,    2795. 
alteration  of  agreement,    2821. 
consideration    necessary   to   create,    2792. 
collectibility,  as  to,   2800. 
conditional,   as    to   liability   on,    2808. 
construction   of,    how  made,    2806. 
continuing    guaranty,    2814. 

as   to   what   is,   2814. 

revocation  of,  2815. 
deemed  original  undertaking,  when,  2792. 
definition   of,    2787. 

delay  of  creditor  does  not  discharge  guarantor,  when,  2823. 
disability  of  principal,   effect  on,   2810. 

discharge    of    principal    by    operation    of    law    does    not    dis- 
charge  guarantor,    2825. 
enumeration    of   original,    2794. 
exoneration    of   guarantors,    2819. 

what   dealings    will   exonerate,    2819. 

void    promise    does    not    alter    or    repair    remedy,    when, 
2820. 
factor  del  credere,   2794. 
guarantor    indemnified    not    exonerated,    2824. 

liability  of  does  not  exceed  that  of  principal,  2S09. 
illegal  contract,   no   liability  on,   2810. 
incomplete  contract,  effect  of,  2799. 

indemnified    guarantor,    alteration    of   contract,    effect,    2824. 
indorser  has   rights   of   guarantor,    3120. 
interpretation    of,    2799. 

liability    upon    such    guaranty,    2802. 

of  complete   contract,   2794. 

recovery    upon    such    guaranty,    2801. 

that    obligation   is    good    or    collectible,    2800. 
knowledge    of   principal   not   necessary,    2788. 
letter    of    credit 

as   a,    2862,    2863. 

may    be    continuing,    2864. 

1160 


INDEX. 
[References  are  to  sections.] 

GUARANTY    (continued). 

liability    of    guarantors,    generally,    2807. 

construction   of,    2806. 

upon    guaranty    of    conditional    obligation,    2808. 
upon   guaranty   of  payment   of   performance,    2S;07. 
must  be  in  writing,   2793. 
of   the    guarantor   cannot   exceed    tliat    of    principal,    2809. 

guarantor   not   liable    on    illegal   contract,    2810'. 
original 

enumeration    of,    2794. 

when   deemed    an,    2794. 
part   performance,    2822. 
principal's   contract   void,    effect    on,    2810. 

disability,    no    effect    on    guaranty,    2810. 
relea.se    of 

as    to,    1543. 

by  altering  principal's  obligation,   2819. 

by    impairing    remedies   against    principal,    2819. 

delay   of   creditor   does   not    work,    when,    2823. 

discharge    of   principal   by   law    does  not   affect   a,    2825. 

effect   of  by   performance  as   a,   2822. 

void   promise    does   not   work   a,   2820. 
reduced   by   partial   performance,    2822. 
revocation    of   continuing,    2815. 
rescission   of  agreement,    2821. 
surety's   rights    those   of   guarantor,    2844. 
time    when    liability    accrues    on,    2807. 
unconditional,   as   to,   when   is,  2806. 
what    is,     2787. 
writing,    must    be    in,    when,    2793. 

need   not   be    in,    when,   2794. 
GUARDIAN    AND    WARD 
ad    litem    guardian,    42. 
appointment    by    court,    243. 
appointment  by  will,   241. 
api)renticing    ward,    265. 

confidential    relation    of    guardian    and    ward,    250. 
custody   of   ward's   person,    rules    for  awarding,    246. 
damages   for  holding   over,  3335. 
death   of  joint  guardian,   252. 
definition    of,    236. 

of    general    guardian,    239. 
discharge    of    guardian    of    minor,    257. 

when  entitled  to,  257. 

1161 


INDEX. 
[References  are  to  sections.] 

GUARDIAN   AND    WARD    (continued), 
duties   of   guardians  of  the   person,   248. 
duty  of  guardian   of   the   estate,   249. 
general    guardian,    what,    239. 
guardiau 

ad    litem,    42. 

under   direction   of   court,    251. 

appointed  by   parent,   how   superseded,   254. 
by  will   or   deed,   241. 

death   of   joint,    252. 

defined,    236. 

discharge,   entitled   to,   when,   257. 

dissolved,    by    what,    256. 

general,    defined,    239. 

rules    for  appointing,    246. 

of  estate,   242. 

of   insane   persons.      See   tit.   Insaue   Persons. 

parental   autliority    ceases    on   appointment    of,    204. 

removal   of,    grounds   for,    253. 

special   and   general,    238. 

special,   what  is,    240. 

under  direction  of  court,   251. 

what,    236. 
guardian  ad   litem,   42. 

under   direction   of  court,    251. 
guardianship,   dissolved  by  what,  256. 
joint   guardian 

as    to,    252. 

death  of,  252. 
jurisdiction,    245. 
kinds    of   guardians,    238. 

parental    authority    ceases   on    appointment    of    guardian,    204. 
power  of  guardian   appointed   by  court,   247. 
relation   confidential,    250. 
release  of  guardian  by  ward,   256. 
removal    of    guardian,    253. 
rules    for   awarding    custody,    246. 
special    guardian,    what,    240. 
special    or    general,    238. 
stockholder,   guardian  as,   322. 
superseded,   how  guardian  is,  254. 
suspension  of  power  of  guardian,  255. 
testamentary   guardian,    241.  . 

1162 


INDEX. 
[References  are  to  sections.] 

GUARDIAN   AND    WARD    (continued). 

\vard 

definition    of,    237. 

may  own  stock  in  what  corporations,   561. 
release   by,    256. 
GUEST.      See    tit.    Innkeepers. 
HABITlFAIi   INTElMl'ERAIVCIi:.      See    tit.    Divorce. 

divorce   granted   for,   when,   92,   107. 
HALF-BLOOD 

relatives   of,   as   to,   1394. 
HANDAVRITIIVG 

evidence  of  must  prove  what,  1199. 

of   subscribing-   witness   may   be    proved,    how,    1198. 
HEAD   OF   FAMILY.      See   tit.    Homestead. 

defined,    1261. 

husband    as,    156. 
HEALTH   IIVSURAIVCE   CORPORATIONS.      See   tit.  Mutual   Life, 

Health    and    Accident    Insurance    Corporations. 
HEIR.      See    tits.    Succession;   Wortls   and   Phrases. 

conveyance    of    good,    unless    will    proved    within    four    years, 
1364. 

Interpretation   of,   1071,    1329. 

legitimacy  of,    who  may  dispute,   195. 

of   minor,  may   disaffirm   contract,    35. 

of   tenant   for  life   take   as   purchasers,    when,    779. 

word   "heirs"  not  necessary   to   pass   fee   to   devisee,    1329. 
HIGHWAY.      See    tit.    Wagon   Road   Corporations. 

conveyance  bounded  by,  passes  what,  112. 

owner's  title  presumed   to   extend   to  center  of,   831. 

railroad  crossing   to  acquire  land,   how,   472. 

see    tit.    Public   Highways. 

telegraph    and    telephone    companies    may    use,    536. 

water  company,   not   to   obstruct,   551. 
HIGHWAYS    AND    PUBLIC    ROADS 

no   tolls    to   be   charg-ed    on,    515. 
HIRING.     See  tits.  Hiring  of  Personal  Propert.v;  Hiring  of  Real 
Property. 

apportionment   of   hire,    1935. 

as   to   what   is,   1925. 

care  required  of  hirer,   1928. 

charter  party 

definition    of,    1959. 

master  may   enter   into,    2376. 

definition    of,    1925. 

degree   of  care   required   of   hirer,    1928. 

1163 


INDEX. 
I  References  are  to  sections.] 

HIRING    (continued). 
expenses 

extraordinary,    1957. 

ordinary,    1956. 

who  must  bear,   1956,   1957. 
hirer   may    terminate    hiring-,    1932.  . 
hiring-    terminates,    -when,    1933. 
injuries   to  be   repaired   by   hirer,    1929. 
letter 

obligations    of,    1955. 

to  put  thing  in   fit  condition,   1955. 
lodging's    for    indefinite    period,    1944. 
particular  use,   1930. 
possession  of  thing  hired,   1927. 
products   of   thing  hired,    1926. 
quiet    enjoyment,    1925. 
quiet   possession,    1927. 
real   property.      See    tits.    Hiring   of   Real    Property;    Liandlord 

and    Tenant. 
repairs,    letter    to    make,    1955. 
return    of    thing   hired,    1957. 

place    of    return,    1958. 
ships,   hiring  of,   1959. 
terminated 

by  death,   etc.,   of  either  party,    1934. 

by    destruction,    1933. 

by    letter,    1931. 

■when,   1933. 
terminating    hiring    by    letter,    1931. 
thing  lent  for  a  particular  use,   1930. 
HIRING  OF  PERSONAL   PROPERTY.      See   tits.   Hiring;   Hiring 

of   Real    Property. 
charter    party,    wliat    is,    1959. 
extraordinary   expenses,   1957. 
obligations   of  letter,   1955. 
ordinary  expenses,   1956. 
return  of   tiling  hired,   1958. 
HIRING  OF  REAL  PROPERTY.     See  tit.  Hiring. 
attornment.      See    tit.    Attornment. 

to    stranger,    1948. 
dwelling   to   be   made   fit   for   its   purpose   by   lessor,    1941. 
fixtures.     See  tit.  Fraud. 
lessee    may   make    repairs,    when,    1942. 
lessor  to  make  dwelling  fit  for  its  purposes,   1941. 

1164 


INDEX. 
[References  are  to  sections.] 

HIRING   OF   REAL   PROPERTY(    continued), 
letting  parts   of   room   forbidden,   when,    1950. 
notice   to   quit,   3344. 

rent  is  payable,  when,   1947. 
of  lodgings  for  indefinite   term,   1944. 
renewal  of  lease  by  continued  possession,   194.^). 
tenant  must  deliver  notice  served,   wlien,   1949. 
term  of  not  limited  or  fixed,  1943. 
HOLDIIVG    OVER 

damages   for   wilful,    3335,   3345. 
HOLIDAYS 

certain  acts   not  permitted   on,   11. 
enumeration   of,   7. 

exclusion   and   inclusion    in   computation    time.      See   tit.    Com- 
putation  of   Time. 
falling   on    Sunday,    10. 
performance  on  following  day,   11. 
what  are    within   meaning   of   code,    71. 
HOLOGRAPHIC.      See    tits.    Olojs^^raphie    AVill;    AVill.s. 
HOME 

to   be   selected  by  husband,    103. 

unfit,  abandonment  of  wife   by   liusband,   when,   104. 
HOMESTEAD.      See    tit.    Homesteail    Corporations. 
abandoned,    how,    1243. 
abandonment 

declaration    of,    1243. 
effectual    from    what    time,    1244. 
acknowledgment    on    conveyance    of    encumV)rance    of    liome- 

stead,   1242. 
alienation  of  homestead 
of    insane    persons,    1269a. 

notice   of  application  for  order,   1269b. 
petition    for,    1269a. 

when  order  may  be  made  and  effect  of,  1269c. 
appraisement    of 

and    division    of,    1251. 
application    for,    how   made,    1246. 
filing  petition   for,    1247. 

hearing,  time  and  place  to  b^e  fixed  for,  1248. 
service  of  petition  and  order  to  show  cause,  1248. 
when   may  be   had,   1245. 
appraisers   of 

appointment   of,    1249. 
compensation    of,    1258. 

1165 


INDEX. 
[References  are  to  sections.] 

HOMESTEAD    (continued). 
appraiser.^   of    (continued), 
duties    of,    1251. 
oatli  of,  1250. 
report   of,    1252. 

proceedings  on,    1252-1260. 
setting-  off  homestead,   125.^. 
as  to  what  consists  of,   1237. 
community   property   may  be   selected,    1238. 
complete,    when,    1265,    1269. 
consists  of  what,   1237. 
conveyance   of,  how   made,    1242. 
costs   of  proceedings   to  subject  to   debts,   1259. 
death  of  spouse,   descends   to   whom,    1265. 
debts 

for   what  liable,   1241. 
liability    of    for,   as    to,    1265. 
declaration    of.      See    tit.    Declaration   of   Homestead. 
as  to  contents  of,   1263. 
abandonment,    1243,    1244. 
recording,    1264,    1268. 
divorce,  disposition  of  on,  146. 
encumbered,   how,    1242. 
execution 

against  homestead,    1245. 
application   for,   how   made,    1246. 
application   of  proceeds   of  sale,   1256. 
appointment  of  appraisers,    1249. 
appraisers   to   be   sworn,    1250. 
compensation  of  appraisers,   1258. 
costs,   how   paid   and   collected,    1259. 
determining  value  and  divisibility,  1251. 
exemption  from,   1240,   1241. 
exemption   of  proceeds   of  sale,    1257. 
money    arising    from    sale    equal    to    homestead    exemption 

protected,    1257. 
notice   of  hearing  and   service   of,   1248. 
order  directing  sale,  when,  1254. 
petition  for,  where  filed,   1247. 
proceedings  on,   1245. 

report  of  appraisers  as  contents  of,   1252. 
setting   out   homestead   exemption,    1253. 
what   bid   may   be    received,    1255. 
when  not  subject  to,   1240. 
when   subject  to,    1241. 

1166 


INDEX. 
[References  are  to  sections.] 

HOMESTEAD    (continued). 

exempt  from  forced  sale,   1240. 

execution   sale  of,    1241. 
from  what  homestead  may  be  selected,   1238,  1239. 
"head  of  family."     See  tit.  Head  of  Family. 

definition    of    term,    1261. 

may    select,    1262. 
mode   of   selection,    1262. 
liability    of,    in    general,    1265. 
liens   on,   for  what  liable,    1241. 
lunatics,   of,  proeeedingrs  to  encumber  or  sell. 

as    to    generally,    1269a. 

notice   of  application  for  order,   1269b. 

petition    for   sale    or   mortgage,    1269a. 

when  order  may  be  made  for,   and   effect   of,   1269c. 
mortgage   of,    1242. 

for  what  liable,  1241. 
other  persons,   selection  of  by,   1266. 
recording   declaration,    1264,    1268. 
recording  selection,    1262. 
sale  of.     See   "execution,"  this  title. 

bid   which   may   be   received   on,    1255. 

disposition   of  proceedings   on,   1256. 

exemption   of  proceedings  of,   when,   1257. 

on   execution,    when,    1241. 

w^hat  bid   may   be   received,    1255. 

when   may   be   directed,    1254. 
selected    from   what   property,    1238. 
selection 

acknowledgment  of,   1266. 

by   other   persons,    1266. 

from    community    property.      See    tit.    Community    Property. 

from  what   property,   1238. 

from  wife's  property,   consent  necessary,   1239. 

mode  of,   1262. 
separate  property  may  be,   1238. 
tenure   by,    when   held,    1265. 
title,   perfected,   when,   1265. 
value    of   homestead   exemption,    1260. 

presumption  as  to  value  not  indulged,   1260. 
what   is,    1237. 
what  may  be  selected,  1238. 

what    not,    1239. 
when   complete,   1265. 
who   may  select  a   homestead,    1260. 

1167 


INDEX. 
[References  are  to  sections.] 

HOMESTEAD    CORPORATIONS 

advertisement    and    sale    of    delinquent    and    forfeited    shares, 

559. 
annual  report  to  be  published,   565. 

publication  to  be  made  where,   566. 
by-laws    must    specify    time    for    and    amount    of    payment    of 
instalments,    558. 
to   be    furnished    to    member   on   demand,    558. 
corporation    terminated,    when   and   how,    563. 
delinquent    shares,  advertisement  and   sale   of,    559. 
dividends  on  termination,   paid   wlien,   563. 
division  of  property  among  shareholders,  when,   563. 
forfeit  for  speculating  in  or  selling  lands  exceeding  amount, 
562. 
penalty    for    violation,    562. 
forfeited    shares,    advertisement    and    sale    of,    559. 
married  w^omen  may  own  stock  in,   561. 

may   borrow   and   loan   funds,   how  and   for   w:iat   time,    560. 
minor  children,    wards,   and   married   women   may    own   stock, 

561. 
payment  of  premiums,   5  64. 

penalty   for  failure    to   pay   instalments,    558. 
premiums,    payment    of,    564. 
stock   of,   who   may   own,    561. 
time   of  corporate   existence,    557. 
wards   may   own    stock    in,    561. 
HOMESTEAD   EXEMPTION 

setting  off,    1253,    1254. 
HORSE 

degree    of   care   required   of  by   hirer,    1928. 
HORSELESS    VEHICLES 

francliise   to   construct  road   for,    524. 
HORTICULTURAL    ASSOCIATIONS.      See    tit.    Co-operative    Ag- 

rieultiiral,   etc.,    Associations. 
HOTEL.      See    tit.    Innkeepers. 

HUMANE    CORPORATORS.      See    tit.    Societies    for    the    Preven- 
tion  of  Cruelty  to   Children   and   Animals. 
HUSBAND.     See  tit.  Hu.shand  and  AVife. 
inherits   from   wife,    1400. 
succeeds,   when.     See  tits.  Community  Property;  Husband  and 

AA'ife;    Succession. 
to    support,    when,    176. 
HUSBAND    AND    AVIFE.      See    tit.    Married    AVomen. 
abduction    of   spouse,    49. 
children.     See  tit.  Parent  and  Child. 

1168 


INDEX. 
[References  are  to  sections.] 

HUSBAND   AND  WIFE    (continued). 

community  property.      See  tit.  Coinniunity  Property. 

g-ift   by   husband,    172. 

includes  what,   164. 

power   of    husband    over,    172. 

testamentary   disposition   of   by   spouses,   172. 

when  not  liable   for  wife's  debts,   167. 
contracts    between 

and   others,   capacity   to  malie,   158. 

by  liusband,   158. 

by   wife,   158. 

not  impaired  by  their  legal  relations,   159. 

of  marriage   settlement,   how   executed,    178. 
minors   may  make,   181. 
to  be  acknowledged  and   recorded,   179. 

effect  of  recording,   ISO. 
of   separation,    159,   160. 

respecting-   community    property,    167. 
courtesy   and    dower.      See    tits.    Courtesy;    Dower. 
custody    of    children.      See    tit.    Children. 
dividends  on    stock,    payable    to   married    woman,    325. 
domicile 

husband    may    fix,    103. 

selecting-  unfit  amounts  to  desertion,   104. 
dower.      See   tit.    Do-wer. 

dwelling,    neither    spouse    can    be    excluded    from,    157. 
earnings   of  wife   not  liable  for  husband's  debts,    168. 

when   living  separate   and   apart,    169. 
enticement   of   wife,    49. 
head   of  family,  husband  is,   156. 
homestead.       See    tit.    Homestead. 

homestead    corporation,    wife    may    liold    stock    in.      See    tit. 
Homestead  Corporation. 

husband  , 

may   make    contracts,    158. 

property  of,   not  liable  for  wife's  debt,   when,   170. 

rights   and   liabilities   of   in    relation   to   stepchildren,    209. 

rights   of   as    head    of  family,    156. 

separate    property    of,    includes    what,    163. 

wife   liable   for   support   of,    when,    176. 
inheritance    by.      See    tit.    Succession. 

inventory    of    separate    property    of    wife.      See    tit.    Separate 
Property    of   AVife. 

filing  of  inventory,   166. 

1169 


INDEX. 
[References  are  to  sections.] 

HUSBAND   A"ND   WIFE    (continued), 
joint  tenancy   between,   161. 

legitimacy    of   issue.      See    tits.    BaMturilN;    Legitiinsicy. 
marriagre  .settlement    contracts. 

by  minor,   181. 

effect  of   recording',   180. 

how  executed,   179. 

to    be    acknowledged    and    recorded,    179. 
married   woman.      See    tit.    Married   AVomen. 
mutual   obligations   of,    155. 
property    interests    of    are    separate,    157. 
property   of,    how    held,    161. 

property    of   wife    not    liable    for    husband's    debts,    171. 
property   rights  of,   in   general,   177. 
right    of   husband 

as    head    of    family,    156. 

may  select  home,  and   wife   must  acquiesce,   130,    104. 
rights   of  husband   and   wife   governed   by,   what,    177. 
savings  and  loan  stock  may  be  held  by  wife,   575. 
separate   property 

of   liusband.      See   tit.    Separate  Property  of  Husband. 

of  wife.      See  tit.    Separate  Property  of  Wife. 

liable    for   antenuptial   debts,    170. 

liability  of,  of  wife,   for  husband's  debts,   171. 
separation 

consideration    for,    160. 

contract  of  between,  159,  160. 
settlement.      See    "marriage    settlement   contracts,"    this    title, 
stepchildren,  husbands  duty  toward,  209. 
stock,   married  woman   may  transfer,   325. 
support  of  husband,   wife  liable  for,   when,   176. 

of   wife,    174. 

when   separated   from   her  husband,  175. 
tenants  in  common,   161. 
wife   may  make  contracts,  v^^hen,    158. 

to  support  husband,  when,  176. 
wife's    earnini^s 

her  separate  property,  when,' 169. 

not  liable  for  husband's  debts,  168. 
wife's   estate.      See   tit.    Separate   Property. 

what   included   in,   162. 
■*Tife's    property 

liable  for  her  debts,   171. 

not  liable  for  husband's  debts,   171. 
wife's  separate  property,  what  included  in,  162. 

■  1170 


INDEX. 
[References  are  to  sections.] 

HUSBAND'S  DEBTS 

earnings   of  wife   not  liable   for,    168. 
HYDRAULIC    MIXIXG 

as    to    generally,    1424,    142.5. 

definition    of,    1425. 

when   may   be   carried  on,    1424. 
HYPOTHECATION 

of   property   by   wagon-road    corporation,    522. 
IDENTIFICATION 

of  contracting'   parties,    1558. 
IDIOTS.      See    tits.    Insanity;    Persons    of    Unsound    ^lind. 
IDLE    ACT 

law    does   not    require,    3532. 
ILLEGAL  CONTRACTS.      See   tit.    Specific   Performance. 
ILLEGITIMATE   CHILD.      See   tits.   Bastard;    I>egitiniaey 

adoption    of,    230. 

custody  and   control  of,  200. 

succession  of.      See    tit.    Succession. 
IMPLIED     COVENANTS 

as   to,    1113. 

what  embraces,   1114. 
IMPOSSIBLE      OR      UNLAWFUL      CONDITIONS.      See    tit.    Con- 
ditions. 

are   void,    1441. 
IMPOSSIBILITY 

ascertaining  consideration   of,    1612. 

ascertaining   object    of   contract   of,    1595. 

condition  void  because  of,   1441. 

defined,    1597. 

law   does  not  require,   3531. 

of  performance   avoid  contract,  1598. 
IMPOTENCY 

as  ground  of  annulment   of  marriage,   82. 
IMPROBABILITY 

of  contingency,   future   interest,    697. 
INCAPACITY.      See    tits.    Insane    Persons;    Persons    of    Uu.xound 
Mind. 

physical,   ground   for  annulment   of   marriage,    82. 

terminates   agency,   2355. 

terminates    hiring,    1935. 

to    consent,    ground    for    annulment    of    marriage,    82. 

to  contract,  39,   40. 
INCEST 

action   to  annul  marriage  for,   82. 

what  marriages  are  incestuous,  59. 

1171 


INDEX. 

[References  are  to  sections.] 

INCIDEATS.      See   tit.   'Transfer. 
INCOME 

accumulation    of,    724,    733. 

allowance  out  of,   726. 

bequest  of,   1366. 

definition   of,   748. 

disiiosition   of.      See   tit.    Accumulatious. 

of  property,  belong^s  to  whom,  733. 

undisposed    of,    733. 
INCOMPETENCE 

of  parties   to  marriage.      See   tit.  Marriage. 
as   to   generally,   59. 
INCOMPETENT   PERSONS 

lease  of  city  lot  of  for  more  than  ten  years,  void,   718. 
INCREASE    OF   PROPERTY.      See    tit.    Accession. 

belongs   to   owner,    732. 

freight  not  charged  on  natural  increase  of,   2139. 

of  hired,   belongs   to  hirer,   1926. 

of  lent,  belongs   to  lender,   1885. 

pledge,   of,   2989. 
INCUMBRANCE.      See   tit.    Encumbrance. 
INDEMNITY.      See    tits.    Guaranty;    Suretyship. 

actions   to   recover,   2777. 

agents,  acts  of  covered  by,  2775. 

agreement    to    indemnify,    interpretation    of,    2778. 

bail,   as   to   what  is,   2780. 

defenses   to  actions  for  recovery   of,   2778. 

definition   of,    2772. 

extends   to   acts   of  agents,    2775. 

for   future   wrong'ful   act,   void,    2773. 

for  past  wrongful  act,  valid,  2774. 

how  regulated,   2781. 

in   judgment   restoring   lost   or   burned   bonds    of   corporation, 
329. 

includes    costs    of    defense,    2778. 

interpretation   of,   rules  for,   2778. 

joint    and    several   liability   of    indemnifiers    witli    indemnified, 
2777. 

judgment   for,   conclusiveness   of,    2778. 

person  indemnifying  as  a  surety,  when,  2779. 
jointly  liable,   2777. 

promissory    note.      See    tits.    Negotiable    lustrunieuts;    Promis- 
sory Note. 

rules  for  interpretation   of  agreement  of  indemnity,   2778. 

1172 


INDEX. 
[References  are  to  sections.] 

INDEMNITY    (continued). 

several,  as  to,  2776. 

surety,   person  indemnifying-  is,   when,   2779. 

to   several   parties,   2776. 

unlawful   act,   against,   2773,   2774. 

wrongful  act,  against,   2773,  2774. 
INDEIVTrRE.     See   tits.   Apprentice;   Master  and   Apprentice. 
IXDICTMEXT 

for  nuisance,   3491,  3492. 
IXDORSEMEXT.        See      tits.      BilLs;      jVegotiable      Instruments; 
Promissory    Notes. 

agreement    to   indorse,    3109. 

apprenticeship,   of,   2'66. 

bill   of  lading-,    2127. 

consideration,   effect   of   want   of,   3122. 

definition  of,  3108. 

effect  of  want  of  consideration,   3122. 

g-eneral  indorsement,   3112. 
how  made   special,    3113. 

implied   warranties    of   indorser,    3116. 

indorsee  in  due  course,  who  is,  3123. 
rights  of,  3124. 

indorsee    privy    to    contract,    3120. 

indorsement   without   recourse,    3118. 
effect    of,    3119. 

indorser    liable    to    payee,    when,    3117. 

marriage   certificate,   of,   73. 

may  be   made   on   separate   paper,    when,    3110. 

means    of    indorsement,    3111. 

of    non-negotiable    instrument.      See    tit.     Xegrotialde    Instrn- 
ments. 

of    stock.      See    tit.    Certificate    of    Stocls. 

rights   of  indorsers  in  due   course,   3124. 
cannot   destroy  negotiability,    3115. 

stock,    necessary    to    transfer,    324. 

surveyor-general's,    on   plat  of  right  of  way,   478. 
INEVITABLE     ACCIDENT.       See     tit.     Rules    of    Navlgatiou. 
INFANT  AND  INFANCV.     See  tit.  Minor. 

abandonment   of,   246. 

abduction    of,    49. 

action    by,    guardian    must    conduct,    42. 

agency,  cannot  give,   33. 

apprenticing.     See  tit.  Master  anil   .4pprentice. 

as  to  who  are,  25. 

1173 


INDEX. 

[References  are  to  sections.] 

INFANT  AND  INFANCY   (continued). 

building-  and  loan  shares  may  be  owned  and  held  by,   643. 
children  who  may  be  arrested  and  brought  before  court,  etc., 

607gr. 
contract,  competency  to,  1557. 

rights    of,    34. 

validity  of,  34. 
delegation  of  power  by,   34. 
disaffirmance   of  contracts,   35. 

by  personal   representatives  of,    35. 

cannot  disaffirm  for  necessaries,   36. 

limitations   on,   37. 

return    of   consideration    on,    35. 
en   ventre.    See   tits.   Posthumous   Child;   Unborn   Infant. 

as   to   rights   of,    29. 
exemplary    damages    against,    41. 
guardian    must    conduct    action    by,    42. 
head    of   family,   as   a,,    1261. 

homestead   stock   may   be    owned   and    held  by,    561. 
land  and  building  shares  may  be   owned  by,   643. 
lease  of  city  lot  of  infant  for  more  than  ten  years,  void,   718. 
marriage  of,  57. 

annulment  of,  82. 

condition   restraining,   710. 
marriage    settlement   by,    may   be   made,    181. 
necessaries,  contract  for  by,  not  to  be  disaffirmed,   36. 
period    of    minority,    how   computed,    26. 
personalty   not   in   possession,   contract   as   to,    33 
posthumous  child,  property  rights   of,   698. 
real  property  of,  contracts  by  respecting,   33. 
savings   and    loan    stock   may   be   owned   by,   576. 
stock  owned  by,  how  represented  at  corporate  elections,   313. 
torts    of,    liability    for,    41. 
unborn   child,   as   to   rights   of,   29. 
who  are,   25. 
INFORMATION.     See  tit.  Nuisance. 

as  to  for  nuisance,  3491,   3493 
INFRINGEMENT.      of    trade-mark.      See    tit.    Trade-marks    and 

Signs. 
INHERITANCE.      See    tit.    Succession. 
injury   done   to,   remedy   for,   826. 
of  husband  and  wife  from  each  other,  1400. 
words  of  not  necessary  to  pass  fee,   1072. 

1174 


INDEX. 
[References  are  to  sections.] 

INJUXCTION 

as  to  generally,  3368. 

allowed,  in   what   cases,    3366,3422. 

not  allowed,  in  what  cases,  3423. 
allowed,   when,   3422. 

court  of  another  state,   proceedings  in,  not  stayed,   3423. 
federal  court,  proceedings  in,  not  restrained,  3423. 
final  or  provisional,   3420,   3421. 
forfeiture,   3369.   ' 
grounds   for   granting,    3422. 
how   granted,   3420. 

legislative  act  of   municipal   corporation,    not,   3423. 
multiplicity  of  suits  restrained  by,  3422. 
not  allowed,   when,   3423. 

office,  not  granted  respecting,   when,   3423. 
penal  law,  3369. 
penalty,   3369. 
provisional  injunction,  as  to  3421. 

regulated   by   code,    3421. 
provisional   or  final,   3420. 

statute,  enforcement  of  not   restrained  by,   3423. 
trust,   in  cases   in  relation   to,   3422. 
when   allowed,    3422. 
when  not  allowed,   3423. 

INJURY.     See   tits.   Damage.s;   Employer  and  Employee;   Master 
and   Servant;   Xeglig-ence. 

contract  for  exemption  from,   1668. 

inflicted   in   duel.      See   tit.   Duel. 

obligation   to  abstain   from,    1708. 

right  to  defend  against,  50. 

right   to   protectio'n   from,   43. 

threat   of,    renders   contract   void,    when,    1569,    1570. 

INN.      See   tit.   Innkeepers. 
INNKEEPERS 

as  to  liability  of,   1859. 

how  exempted   from   liability,    1860. 

lien   for  charges   on   baggage,   1861. 

sale  of  unclaimed  baggage,   1871. 

to  post  rates  of  charges,   1871. 

unclaimed  baggage,  how  disposed   of,   1871. 
INNUENDO.      See    tit.    Llhel. 
INSANE  DELUSION.     See  tit.  AVlUs. 

1175 


INDEX. 
[References  are  to  sections.] 

INSANE    PERSONS.      See    tit.    Person.s    of    Unsound    Mind. 

agency   terminated  by  incapacity  of,   2355. 

as   to  sale  or  mortgage   of   homestead   of,    1269a,  1269c. 

contract,   competency   to   make,   1558. 

employment    terminated    by    incapacity    of,    1996,    1997. 

guardian  of,    1763. 

homestead   of,   alienation  or  encumbrance   of,   1269a,    1269c. 

liability    for    torts,    40. 

marriage  of,  annulment,   82.  ^ 

necessaries  of,    liability   for,    38. 

powers  of,  after  oflice  found,  40. 

proposal   to   contract   revoked   by   insanity,    1587. 

rescission   of  contract  of,   39. 

restoration,   certificate   of,   evidence   of  legal   capacity,   40. 

stock  of,   how  represented  at  corporate   election,   313. 

torts   of,    liability  for,    41. 

trustee,    2282. 
INSOLVENCY.      See    tits.    A.ssij;nment    for    Benefit    of    Creditors; 

Fraudulent   Transfers;   Stoppage   in   Transitu. 
INSTRUMENT 

cancelation  of,  in  general,  3412,  3414. 

judgment  proving,  1203. 

proof  of,   action  for,   and  effect  of  judgment,   1304. 
execution  of,   when  not  acknowledged,   1195. 
INSULT 

right   to   protection   from,    43. 
INSURABLE    INTEREST.      See    tit.    Insurance. 

as  to  what  is,  2546. 

carrier  has,  2548. 

change  of  interest  or  succession,  2552. 

cotenants,    transfer   between,    effect   of,    2557. 

death  of  insurer,   2556. 

depositary  has,  2548. 

exception   in  case  of  several  subjects  in  one  policy,   2555. 

expectancy,    2549. 

factor    has,    2367. 

in  life,  assignment  to  one  witliout,  effect  of,   2764. 

in  what  may  consist,   2547. 

insurance  without  interest  illegal,  2551. 

interest  for  life,  2763. 

interest  insured,   must   exist,   2552. 

interest   of  carrier   of  depositary,   2548. 

loss,    transfer  after,    effect   of,    2554. 

measure   of   interest   in   property,   2550. 

1176 


INDEX. 
[References  are  to  sections.] 

INSURABLE    INTEREST    (continued), 
mere  expectancy,  2549. 
transfer,    after    loss,    2554. 

effect   of,    2553. 
transfer  between  cotenants,  effect  of,  2557. 
void  insurance  stipulations,   2558. 
wlien  must  exist,   2552. 
IjVSURAXCE.       See     tits.     Insurable     Interest;     Insurance     Com- 
panies. 
accident    insurance.      See    tit.    Insurance    Corporation. 

insurance  by  form   of   policy,   2587. 
assignment  of  life  insurance  policy,  effect  of,   2764. 
assignment  of  tiling  insured   to  mortgagee,   effect,   2541. 

new  contract  between  insurer  and  assignee,  2542. 
carrier   has    insurable   interest,   2548. 
certificate   of   loss   dispensed  with,   when,  2637. 
change   o£  interest 
after    loss,    2554. 

between   partners  of  joint  owners,   2557. 
by  death  of  insured,  2556. 
in  one  of  several  things,  2555. 
in  thing  insured,  2554,   2557. 
commissioner.      See   tit.   Insurance  Commissioner. 
concealment  and    representations,    2561. 
application   of  provisions  of  statute,   2582. 
effect  of  concealment,  2562. 
fraudulent  warranty,   2569. 

interest  of  insured.     See  tit.  Insurable   Interest. 
as   to,   2568. 

materiality   of  representation,   2581. 
materiality,    test    of,    2565. 
matters  each   is  bound  to  know,   2566. 
matters    of    opinion,    2570. 

matters   wliich   need   not  be   communicated,    2564. 
opinions,    matters   of,   2570. 
waiver   of   communication,    2567. 
what  may  be  insured,  2531. 
wliat  must  be  disclosed,  2563. 
contribution 

in   case   of   double   insurance,    2642. 
in  case   of  over-insurance,   2620. 
proportionate  contriljution,  2622. 
definition  of,   2527. 

disclosed,  facts  which  must  be,  2563. 
facts  which  need  not  be,  2564. 

1177 


INDEX. 
[References  are  to  sections.] 

INSURANCE    (continued). 

double   insurance,  as  to,   2641. 

contribution,   in  case  of,   2642. 

definition   of,    2641. 
events  that  may  be   insured  against,   2531. 
examination  of  premises  by  insured,  and  value  fixed,  2757. 
excepted   perils,   2628. 
exoneration  of  insurer,   2629. 
factor   may   insure,    2368. 
fire 

corporations  to   discover,   etc.,   453a,  453b. 

double    insurance,    contribution,    2642. 

examination   of  premises  and  fixing  value,   2757. 

insurance.      See    tit.   Fire   Insurance. 

measure   of  indemnity,   2756. 

partial   loss,   2757. 

property  which  may  be  insured,  426. 

valued  policy,   2757. 
fire   and    marine    insurance,    428. 
fire   companies.      See   tit.   Insurance  Companies. 
fraternal  societies  exempt  from  laws  of,  451,   453p. 
fraud    in,    2629. 

fraudulent   omission   to  communicate   facts,    25C9. 
fraudulent  warranty,  2569. 
g-uaranty    insurance,    2772-2778. 
increase   of  risk,   acts  not  affecting  policy,   2754. 

alterations  which  affect  on,   2753. 

alterations    ■which   do   not   affect   on,    2754. 
indemnity    insurance,    2527. 

insurable    interest.      See    tit.    Insurable    Interest. 
insurance    of  lottery   or   prize   unauthorized,    2532. 
insured,  who  is,  2539. 

who  may  be,  2540. 
insurer,   exoneration   of,    2629. 

who   is,   2539. 

who   may   be,    2540. 
interest  covered  by   policy,   2568. 

of  insured,  necessity  of  communicating,  2568. 
joint  owners,  transfer  of  interest  between,  2557. 
kinds   of,    2533. 

lapsing  of  policies,   prohibited,   when,    453m. 
life   and   health.      See   tit.   Life   and  Health   Insurance. 
loss,   2626,   2627. 

certificate    dispensed    with,    when,    2637. 

1178 


INDEX. 
[References  are  to  sections.] 

INSURANCE    (continued). 
I0S.S    (continued). 

excepted    perils,    2628. 

incurred    in   rescue   from   peril,    2627. 

negligence  and  fraud,  2629. 

notice    of,    2633. 

perils    of    insurance,    proximate    and    remote,    2626. 

preliminary   proofs   of,    2634. 

waiver  of  defects  in  notice,  etc.,  2635. 

waiver   of   delay,    2636. 
lottery  not  insurable,   2532. 

marine    insurance.      See   tit.    Marine   Insurance. 
negligence,    2629. 
over-insurance,    as    to,    2620. 
parties   to   contract   of  insurance,   2538. 

designation    of   parties,    2538. 

who  may  be  insured,  2540. 

who  may  insure,   2539. 
perils,    remote    and    proximate,    2626. 
policy.      See   tit.    In.suranoe   Policy. 
premium,    2616. 

earned,   when,  2616. 
over-insurance    by    several    companies,    2620. 

contribution,    2621. 

proportion  of  contribution,  2622. 
return  of,  2617. 

for  fraud,  2619. 

when  not  allowed,  2618. 
reinsurance,   as  to   what  is,  2646. 

disclosures  require,   2647. 

original  insured  has  no  interest,  2646. 

presumed  to  be  against  liability,  2648. 
representation  as  to,  what  is,   2571. 

as   to  future,   2574. 

falsity  of,  2579. 
conflict    of,    2580. 
materiality    of,    2581. 

how    interpreted,    2573. 

how  may  effect  policy,   2575. 

representation,    information,    2578. 

rescission   of   insurance   contract,   2583. 

time  intended  by,  2577. 

when  may  be,   2572. 

when   may   be   withdrawn,    2576. 
rescue    from    peril,    loss   incurred    in,    2627. 

1179 


INDEX. 
[References  are  to  sections.] 

INSURANCE    (continued), 
test   of  materiality,    2565. 

what  events  may  be  insured  against,  2531. 
who   may  insure,   2539. 
who  may  be  insured,  2540. 
IXSURANCE   COMMISSIONER 

authority    over    mortgage    insurance    companies,    453aa. 
bills    for    certain    expenses,    453o. 
INSURAXOE    CORPORATIONS.      See    tits.    Fire    luNuranoe;    Life 

Insurance. 
capital,    how    invested,    421. 
capital  stock  of  one"  hundred  thousand  dollars,  when,  420. 

of  two  hundred   thousand   dollars,   when,   419. 

subscription   to,   how   opened,   414. 
directors   liable  for   loss   on    insurance,   wlien,    418. 
dividends 

as  to  what  are,  417. 

w^hen  to  be  declared,   417. 
investment   of  capital  and  accumulations,    421,   421  [a]. 

life   insurance   corporations   may   loan    on    own   policies,    421, 
421[a]. 

purchase  of  or  loan  upon   interest-bearing  bonds,   421  [a], 
policies,   how  issued,   and  by  whom  signed,   416. 
purchase   and   conveyance   of  real  estate,  415. 
report  of  officers,  421. 

subscription   to  capital  stock,  how  opened,   414. 
surplus  of,   how  invested,   421. 
what  property  may  be  held,  415. 
INTEMPERANCE 

ground  for  divorce,  when,  92,  107. 
liabitual,  vs^hat  is  in  divorce,  106. 
must  continue  for  one  year,  107. 
INTENTION.  See  tits.  Gifts;  AViUs. 
ascertained 

by  language,  when,  1638. 

by  writing,  when,  1639. 
compliance   with,    substantial   sufficient,    1348. 
fraudulent,   a  question   for  tlie  jury,    3442. 
general   terms  restricted  by,   1648. 
hoT\-    ascertained 

as  to   generally,   1637. 

in    revision,    3401. 
inconsistent   witli,    words   whicli   are,    to   be   rejected,    1653. 
interpretation   of  contract  governed  by,   6136. 
of  grantor,  where   grant  ambiguous,   1068. 

1180 


INDEX. 
[References  are  to  sections.] 

INTENTION    (continued). 
of   testator 

as   to   g'enerally,    1317,    1370. 

to    be   ascertained    from    words    of   will,    1318. 
of  trustor,   necessary   to  creation   of  the   trust,   2221. 
overrules 

grammatical    construction,    1324. 

teclinical  meaning,  1327. 
particular  clause,   subordinate   to   general,   1650. 
revision  and   reformation   of  contract   to  conform   to,   3399. 
substantial   compliance   with,   sufficiency   of,    1348. 
superior    to    terms    of    expression    in    written    contract,    when, 

1640. 
to   be   ascertained   from   words    of    will,    1318. 
to    be    carried    out,    1317. 

to   deceive,    indispensable   element   in    fraud,    1572. 
to  desert,   simple   separation  does  not  show,   100. 
to   extinguish   obligation,   necessary  in   novation,    1531. 
to  control   in   the   interpretation   of   contracts,    l(f36. 
to   make   ademption,   writing,   necessary,    1351. 
«heii   ascertained 

by    language,    1638. 

by    the   writing,    1639. 
words  which  are  inconsistent  witli  are  to  be  rejected,  1653. 
INTEREST 

annual    rate,    1916. 
as   to   time 

as   to   generally,   688. 

future    interest,    what    is,    690. 

limited    interest,  what   is,    692. 

perpetual  interest,  what  is,  691. 

present   interest,    what  is,    689. 
bequest  of,   1366. 

bottomry   contract,    rate   in,    3022. 
Ijuilding  and   loan    corporations,    633. 
cemetery   bonds,    on,    611. 
eomitoiind 

trustees's   liability   for,    2262. 

wlien  compounded,   1919. 
computation  of,  1917. 
damages,  as,  3287,  3294. 
definition  of,  1915. 
guaranty    notes    of    mutual    life    insurance    comjianies,    as    to 

on,   441. 
illegal    rate,     1917. 

1181 


INDEX. 
[References  are  to  sections.] 

INTEREST    (continued). 

in  actions  ex  contractu,   3287. 

after  breach,    3338. 
In   actions   ex   delicto,    3288. 
judgrnent,    interest   on,    1917-1920. 
legacies,   Interest   on,    1368. 

loan    and    building    corporation,    interest    chargeable    by,    634. 
offer   of    performance    stops   running   of,    1503. 
parties    may    agree    to,    1918. 
presumed  on  loan  of  money,  1914. 
protested  bill,   rate  of,   3236. 
railroad  bonds,  interest  on,  456. 
rate  of 

after  breach   of  contract,   3338. 

after  verdict,   3289. 

limit  of  by  contract,   3289. 

on    money  borrowed    by    hon^estead    corporation,    560. 
respondentia,   rate   on,   3039. 
special   partner   entitled   to,    when,   2492. 
trustee   liable   for,   when,    2262. 

liability    to    beneficiary,    2237. 
waiver   of,   by   accepting   principal   without,    3290. 
INTEREST   IX    COMMON 
as    to,    generally,    686. 

as  to   what  interests  are  in  common,   686. 
community  property.      See  tit.  Community  Property. 
what    is,    685. 
INTEREST  IN   PROPERTY 
an   to   time   of   enjoyment 

future    interest,    what   is,    690. 

limited    interest,    what   is,    692. 

perpetual  interest,   what  is,   691. 

perpetual    or   limited,    688. 

present  or  future,  689,  690. 
contingent  interest,   as  to  what  is,   695. 
expectant   estates.      See   tit.   Expectant   Estates. 
future   interest,   two   or   more   conflicting,    696. 

not  to  be  void,   697. 
Interest   in   real   property,   what   is,    701. 

future    interests   are    recognized,    703. 

kinds   of  future   interest,   690. 

mere    possibility    of    the    interest,    700. 

name   and  classification   of  interests,   702. 

posthumous   children.      See   tits.   Posthumous   Children;    In- 
born   Child. 

vested    interest,    as   to    what   is,   694 
1182 


INDEX. 
[References  are  to  sections.] 

IlVTERIiOCUTORY  JUDGMENT 

in  action   for  divorce,    131. 
INTERPRKTATION 

of  agent's  authority,    2322. 
INTERPRETATION    OP    CONTRACTS 

as   to   time   of   performance,    1657. 

control  by  circumstances,   1647. 

effect  to  be  given  to  every  party  of  instrument,   1641. 

general  rule   of  interpretation,    1635,   1636. 

how    to   be    interpreted,    1636. 

inconsistent  words  rejected,   1653. 

in  favor  of  contract,   1643. 

in  sense  in  which  promisor  believed  promisee  to  rely,  1649. 

intention  of  parties,  how  ascertained,  1637. 
language   used   to   govern,   1638. 

law  of  place  governs,  when,   1646. 

necessary  incidents   implied,    1656. 

of   written   contracts,    1639. 

writing,   when   disregarded,   1640. 

fraud  and   mistake.     See  tits.   Fraud;  Mistake. 

particular    clauses    subordinated    to    general    intent,    1650. 

partly    written    and    partly    printed,    1651. 

reasonable    stipulations    implied,    when,    1655. 

repugnance,   how  reconciled,   1652. 

restricted  to  its  evident  object,  1648. 

several   contracts  taken   together,   when,    1642. 

technical   words,    how    interpreted,    1645. 

words   taken   most   strongly  against   whom,    1654. 

words   to  be  understood   in   their  usual  sense,   1644. 
INTERPRETATION    OF   GRANT.      See    tit.    Transfer. 
INTERPRETER 

may  be  employed  by   officer   taking  acknowledgment,   1201. 
INTESTATE.      See   tit.    Sueoession. 

estate  of,  chargeable  witli   debts,   135S. 
INTESTACY 

to  be  avoided,   in  construction   of  will,   1326. 
INTOXICATION.      See    tits.    Contracts;    Divoroe;   AVIIIs. 
INUNDATION 

deposit  by  an,  as  to,  1815. 
INVENTION 

as    to   property   in,    980-985. 
INVENTORY 

by  assignee  for  creditors,   3461-3464. 

by   specific  legatee,   1365. 

1183 


INDEX. 
[References  are  to  sections.] 

INVENTORY    (continued). 

of   separate   property   of   wife.      See    tit.    Separate   Property   of 
Wife, 
IRRIGATION.      See    tit.    Canal    Corporation.s. 

ditch   or  flume,   liability   in   use   of  by  association,   842. 

easement,    552. 

flume  or  ditch,   liability  in  use  of,    842. 

maintenance  of  flow  of  water  in  streams  to  canal  takes,  1410b. 

rig'ht    of    purchaser    to    use    water    for.      See    tit.    Water    and 
Canal  Corporations. 
IRRIGATION  CORPORATION.      See    tit.    Irrigation. 

as  to,   generally,  552. 

stock  appurtenant   to   lands,   when,    324. 

transfer   of   stock   ofj    324. 
IRRIGATION    STOCK 

appurtenant  to  certain  lands,  324. 
ISLANDS 

as    to,    generally,    1016-1018. 

belong   to   whom,    1016. 

formed   by    diversion    of   stream,    1018. 

in   navigable    streams,    1016. 

in  unnavigable  streams,   1017. 

sudden   removal   of  bank,   1015. 
ISSUE 

interpretation    of,    1071. 

meaning    of,    in    certain    remainders,    1071. 

unprovided    for    to    succeed,    when,    1307. 
JETTISON.      See    tit.      General  Average. 

definition  of,  2148. 

loss,  how  borne,  2151. 

order  of,   2149. 

by  whom  to  be  inade,   2150. 
JOINT 

and  several  contract,   presumed,   when,  1659. 

and   several   obligation,   what   Is,   1430. 

authority,  12. 

authorship,    981. 

ereditor 

directions   by   one  to   debtor,    1476. 
performance   by    one,    1475. 

debtor   performance   by,    1474. 

delivery  of  thing  by  depositary  which   is  owned  jointly,  1827. 

employees,   duty   of   survivor,   1991. 

guardian,    death    of,    effect,    252. 

1184 


INDEX. 
[References  are  to  sections.] 

JOINT    (continued). 
interest 

change  in  does  not  affect  insurance,  when,  2557. 

defined,   683. 
liability    of    each.    2239. 
obligations,   as    to,    1430-1432. 

owner,   delivery,   how   made   to  by  depositary,   1827 
ownership,  as  to,  682. 

promise,   presumed  to  be,   when,   1659,    1660. 
services  after  death  of  joi'nt  employee,   1991. 
survivorship  between,   2288. 
trustee,   all    must    act,    2273. 
JOINT    AUTHORITY 
how  construed,  12. 

joijVT  deposits 

by    two   or   more   persons,    1828. 
JO  I  XT    INTEREST 

w^hat  is,    6S3. 
JOINT    OWNERSHIP 

to   products    of   the    mind,    981. 
JOINT  OR   SEVERAL  OBLIGATIONS.      See   tit.    Obligations. 

contribution  between  parties,  1432. 

statute   of  limitations   as   to.      See   tit.    Statute   of   Limiiatlou!). 
JOINT    TENANCY   AND   JOINT   TENANTS 

husband  and  wife  may  be,  161. 
JOINT  WILLS.     See   tit.  W^ills. 
JUDGMENT 

effect   of,   in   action   to  prove   instrument,    1203. 

effect  of  such  judgment,  1204. 

for  delivery.      See   tit.   Claim   and  Delivery. 

for   possession    of,    3375. 

interest,  1919. 

interlocutory,   131. 

lien   of,   3058. 

marriage   annulled   by,    86. 

may   be   recorded   without  acknowledgment,    1159. 

partner   may  not   confess,   2430. 

proving  instrument,  1203. 

recording.      See   tit.   Iloeorilation. 
JUDICIAL    SALE 

foreclosure  of  riglit  to  redeem  pledge  by,   3011. 

warranty   upon,   1777. 
JIINIOB    LIENOR 

right    of    to    redeem,    2904. 

38  1185 


INDEX. 
[References  are  to  sections.] 

JURISDICTION   ACQUIRED    BY   CORI'ORATIOIV    ON    Pl'HI>ICA- 
TION   OF  NOTICE 

as    to,    generally,    340. 
JUSTICE  OF  THE   PEACE 

acknowledgment,    may    certify,    1194. 

may    take,    1181. 
apprenticeship.      See    tit.    Ma.ster   and    Amirentice. 
list  of  property  found  to  be  filed  witli,   1864. 
marriage   ceremony   may  be  performed   by,   70. 
may   call   meeting   of   corporation,    wlien,    311. 
JUSTICES'   COURTS 

appeal   from,   undertaking  on,    97Sa. 
JUSTIFICATION.     See  tit.   Libel. 
KILLING  SHEEP 

by    dogs,    as    to   liabilitj^    3341. 
KINDRED 

collateral   line,    direct   line    of,    1393. 
degrees  of  i'n   direct  line,   1392. 
direct  line,    1392. 
half-blood.      See  tit.   Half-blood. 
LABORER 

lien    of,    3052,    3061,    3065. 
LAND 

definition   of,    659. 
LAND    AND    BUILDING    CORPORATIONS 
annual  report,  64  4. 

forfeiture  for  failure   to  file,   644. 
report  to  be  published,   644. 
arrears   in   payment,   notice  and   forfeiture,    639. 
capital   stock,   634. 
certificate  of  shares,  series  of,   634. 
defaulting  member   entitled   to   withdrawal,    639. 

withdrawal    value    to    be    credited    on    enforcement    of    for- 
feiture,  639. 
definition  of  term   "building  and   loan  association,"  648. 
dues,    634. 
electing    to    continue    business,    procedure    on,    646. 

certificate,    646. 
entrance  and  transfer  fees,   634. 
fines,   634. 

foreign    building    and    loan    association,    deposit    required    of, 
645. 
agents  of  companies   not  complying   guilty   of  misdemeanor, 

645. 
effect  of  failure  to  comply,   645. 

1186 


INDEX. 

[References  are  to  sections.] 

LAND   AND    BUILDING  CORPORATIONS    (continued). 
Installments  to  be  uniform,   637. 
losses   of,    642. 

matured    stock,    amount    applicable    to    payment   of,    6.36. 
may    borrow    money,    641. 
may  buy  real  estate,   640. 
membership,    who    may    hold    shares,    643. 

exemption,   643. 
money  to  be  loaned,   637. 
notice  of  withdrawal  or  surrender  of  stock,   63Sa. 

notice    of   arrears    and    forfeiture,    639. 
payment  in  advance,  634. 
profits   and   losses   of,    642. 

rate   of   interest   on   and   security   for   loans,    638. 
repayments,   638. 

retire    free    shares^    amount    annually,    635. 
shares,   634. 

subject  to  provisions  relating  to  bank  comini'ssioners,  647. 
what    articles    of    Incorporation    shall    set    forth,    633. 
withdrawal   or   surrender   of   stock,    63Sa. 

notice    of,    63Sa. 
I.ANDIiORD  AND  TENANT.      See  tit.   liCase. 

adverse  proceedings,   notice   of  to  be  given  by  tenant,   1949. 

assignee    of    lease,    liability    of,    822. 

nttoriiiitent 

by    tenant   not   required,   when,    1111. 

of  tenant  to  stranger,  1948. 
dwelling-house,   to  be  put   in   fit  condition  by  lessor,   1941. 
ejectment 

notice  of  to  be  delivered  by  tenant,  1949. 

without   notice,    793. 
fixtures.     See  tit.  Fixtures. 

holding   over,    treble    rent    for    wilfully,    3345. 
lease 

dependent   on   life   of.  person,    rent   recoverable   after,   death, 
S25. 

for   life,    rent   on,    824. 

of   city   lot   for   more    tlian    ninety-nine    years,    void,    718. 

of  farm   for   more  than    flfteeii   years,   void,    717. 

statute  of  frauds,  1624. 

terms   may   be   changed   by    notice,    827. 
lessees  and  assignees,  ri'ghts  of,  823. 

assignee,   liability   of,   822. 
letting  parts   of   rooms,    regulations    regarding,    1950. 
liability  of  assignee   of  lease,   822. 

1187 


INDEX. 
[References  are  to  sections.] 

LANDLORD  AND  TENANT   (contrnued). 

lodgings    hired   for    an   indefinite   period,    1944. 
quit 

failure    to    after    notice,    treble    rent   as    damages,    3344. 

notice   to,   1946. 
re-entry,    to    be    made,    when    and    how,    791. 
renewal  of  lease 

acceptance    of    rent    as,    1945. 

by  continued  possession,    1945. 
rent 

dependent   on   life,    825. 

effect  of  lessor's   failure   to   repair,   1942. 

life   lease,    824. 

payable,   when,    1947. 

tenant  released  from,  when,  1950. 
repairs 

lessee  to  make,  effect  of  failure  to,  1942. 

when  lessee   to  make,   1942. 

w^hen   lessor   to   make,    1941. 
rooms,   letting  part  of  prohibited,    1950. 
tenant  at  will,  as  to  rights  of,  819. 

tenant  for  years,  as  to  rights  of,   S19. 

tenant  must  deliver  to  landlord  noti'ce  served  on  him,  1949. 
term 

hiring    lodging-house    for    indefinite    period,    1944. 

of    hiring,    when    no    limit    fixed,    1943. 
termination   of  tenancy   at  will,    789,    790. 

for   holding   over,    3345. 
treble  rent  on  failure  to  quit  after  notice,   3344. 
vacation    by    tenant,    for    failure    to    repair,    1942. 
LAPSE   OF   TIME.      See   tit.    Limitatiun   of  Action. 
bottomry    lien    extinguished    by,    3027. 
definition   of,    125. 

divorce  denied  because  of,  when.  111. 
extinguishes    bottomry    lien,    3027.     , 
lien,   not  extinguished  by,  2911. 
nuisance,   not   legalized   by,    3490. 
partnership,    dissolved    by,    2450. 

presumptions    arising   from,    maj'    be    rebutted.    126. 
proposal    to    contract,    revoked   by,    1587. 
LAPSED 

devise,    1343,    1409. 

legacy,    1343,    1409. 

LATENT   DEFECTS 

warranty    of    manufacturer    against,    1769. 

1188 


INDEX. 

[References  are  to  sections.] 

LATERAL    SUPPORT 

easement    of,    801,    802. 
excavations   infringing   on,   832. 
LAUNDRY 

as   to    lien   on,    3051. 
LAW 

obligations  imposed  by,  1708-1715. 
LAWYER.      See    tit.    Attorney. 
LEASE.      See   tit.    Hiring. 

agricultural  lands,  for  more  than  fifteen  years,  void,   717. 
assignee    of,    remedies    of    lessor    against,    822. 
building   and   loan    associations,    may   make,    640. 
change  of  terms  of,  827. 
city  lots 

for    over    ninety-nine    years,    void,    718. 

property  of  incompetents,  for  ten  years,   only,   718. 

property   of  minor,    for   ten   years,   only,    718. 

property   of   municipality,   for   ten   years,    only,    718. 
for  life,  remedy  on,   824. 
notice   of   change   of   terms   of,    827. 

of  agricultural  lands  for  more  than  fifteen  years,  void,   717. 
of   city   lots    for    more    than    fifty   years,    void,    718. 
recording,    1214. 
reneT\-al 

by  acceptance   of   rent,   1945. 

by   continued  possession,   1945. 
renewal  of  by  continued  possession,   1945. 
rights   of   lessees   and    their   assignees,    823. 
statute    of   frauds,    1624. 

telegraph   and   telephone   property,   lease   of,    540. 
trust,    express,    may   lease    realty,    857. 
LEASE    AND    PROFITS 

to    receive    and    accumulate,    857. 
trust   to   receive  and  pay,   857. 
LEGACY.      See    tits.    Devises    anil    BetiiieNts;    ^V^Il.s. 
abatement    of    legacy,    1362. 
as   to   nature   and   designation    of,    1357. 

annuities.      See    tit.    Annuitle.s. 

demonstrative    legacy,    1357. 

general    legacy,    1357. 

residuary   legacy,    1357. 

specific   legacy,    1357. 
bequest  of  interest,   1366. 

satisfaction    of,    1367. 
construction  oT  the  statutes  in  relation  to,  rules  for,  1370. 

1189 


INDEX. 
[References  are  to  sections.] 

LEGACY    (continued). 

estates    chargeable    with,    1358. 

order  of  resort  to  estates  for  debts,   1359. 
for    legacies,    1360. 
for   legacies    to    kindred,    1361. 

gift    treated    as,    when,    1153. 

interest   on,   from   what   time,   1369. 

liability    of    beneficiaries    for    testator's    obligations,    1?,11. 

possession   of   legatee,    1365. 

specific    legacies    and    devises,    1363. 

when    due,    1368. 
LiEGAIi    AND    MORAL    OBLIGATIONS.      See     tit.     Cousiileraliou. 

as    to    being    valid    considerati'on,    1606. 
LEGAL  RELATIONS 

of   husband   and   wife,    alteration    of,    159. 
LEGATEE 

death    of   before   testator,    effect    of,    1310. 
LEGISLATURE 

dissolution    of   corporation    by,    384. 
effects  of,   404. 

examination  of  affairs  of  corporation  by,  382. 

regulating,    freights,    465. 
LEGITIMACY.     See    tit.    Bastards. 

of  children    born   after   divorce,    194. 
born    before   annulment,    84. 
in   wedlock,    193. 

who    may    dispute,    194. 
LENDER.     See   tit.   Loan   for   use.  * 

liable   for  defects,   when,   1893. 

may  require  return  of  thing  lent,  1894. 
LESSOR  AND   LESSEE.     See   tit.   Landlord  and  Tenant. 
LETTER.      See    tit.    Lessor. 

hiring    terminated    by,    1931. 
LETTER    OF    ATTORNEY.      See    tit.    Power   of   Attorney. 
LETTER  OF   CREDIT 

addressed,    how,    2859. 

credit  given  on  must  agree  with  terms  of  letter,  2S66. 

credit  under  must  agree  with  terms  of,  2866. 

definition   of,    2858,    2866. 

direction  of,   2866. 

either    general    or    special,    2861. 

general* 

extent  of,  2863. 
nature  of,  2862. 
or  special,  2861. 

1190 


INDEX. 
[References  are  to  sections.] 

LETTER  OF  CREDIT    (continued). 

how   addressed,    2*859. 

liability   of  writer,    2860. 

may  be  a   continuing  guarantj",   2864. 

notice   to   writer   necessary,    wlien,    2865. 
LETTER.S 

containing    valuables,    liability    of    carrier,    2177. 

property  in,  9S5. 
I.ETTKRS    PATENT 

recorded    without    acknowledgment,    1160.  , 

LIBEL 

as  to  what  constitutes,  45. 

defamation,    44. 

privileged    puVjlication.      See    tit.    Privilegert    I'liliIicalioiiH. 
LICENSE 

marriage,    as    to,    69,    79. 

of   ships,    966. 

of   street   railways,    505. 

to   take   tolls,   528. 
IjIC'ENSE.      See  tits.   Marriajst';   Negligence;  Obligations   Imposed 
by    l>a«-. 

marriage    without,    79. 
LIEN 

accessory    to    thing    secured,    2909. 

agistor.      See    tit.    Agistors. 

apportionment  of,    2912. 

bankers.     See  tit.  Bankers. 

bolts  on.      See   tit.   Other  Liens. 

bottomry.      See   tit.   Bottomry. 

bull,    of    owner    of.      See    tit.    Stallion. 

carriers.     See  tit.  Carrier. 

on   baggage.      See   tit.    Baggage. 
ship's  master  may  not  give  up,   2388. 

certain  contracts  void,  2889. 

compensation,  holder  of  not  ejititled  to,  when,   2892. 

confined   to   what,    2891. 

oontraet 

created   by,   2881. 
may  be  created  by,   2SS4. 
respecting,    void,    when,    2889. 
subject   to,    2877. 

created   by  contract,   2884. 

creation    of    liens,    2881. 
by  contract,    2884. 
how   created,   2881. 

1191 


INDEX. 
[References  are  to  sections.] 

LIEN   (continued). 

oreatiou  of  Ileus   (continued). 

lien    on    future    interest,    2883. 

no  lien   for  claim   not  due,   2882. 
definition,    2872. 

of   general   lien,    2874. 

of  special   lien,    2875. 
does  not  imply  personal  obligation,  2890. 
effect  of,  2888. 

certain  contracts  void,  2898. 

does  not  imply  personal   obligation,   2890. 

extent   of   lien,    2891. 

holder    of   lien    not    entitled    to   compensation,    2892. 

transfers   no   title,   2888. 
extent  of  lien,   2891. 
extinction  of 

by    apportionment,    2913. 

by    lapse    of   time    under    statute    of    limitations,    2911. 

by  limitation,   2911. 

by    partial    performance,    2912. 

by    performance,    2909. 

by  restoration,  2913. 

by  sale  of  property,   2910. 

how   made,    2909. 
factor's    li'en,    as    to.      See   tit.   Factors. 
forfeitures   of  property,   contract   for,  void,   2889. 
fraudulent    conveyance.      See    tit.    Fraudulent    Transfer. 
for  storage  charges,    1856. 
future   interest   on,   2883. 
future  obligation,   security   for,   2884. 
general   lien   defined,   2874. 
general    or    special,    2873. 

holder  not  entitled  to  compensation,   2892. 
homestead,    liable   for,   when.      See   tit.    Homestead. 
innkeepers,    1860. 

jack,   of  owner  of.      See   tits.   Stallion;   Other  Liens. 
judgment,   of.      See   tit.   Judgment. 

laborers.    Of.      See   tits.    Laborer's   Lien;   Otlier   Lieus. 
lien   for   future   interest,    2883. 
live  stock,  for  agistor.      See  tit.  Agistor. 
livery    stable   keeper.      See    tit.    Liverj-    Stable   Keeper. 
logs.      See   tit.   Logger's   Lien. 
mortgage.      See    tit.    Mortgage. 
no    lien    for    claim    not    due,    2882. 
ofRcer,   for  levying  writ   of,   3057. 

1192 


INDEX. 
[References  are  to  sections.] 

LIEN   (continued). 

order  for  resort  to   different   funds,   when,   2899. 

other  liens.     See  tit.  Other  Liens. 

partners,    in    mining-.      See    tit.    Miuiug   Partner-shlp. 

on    shares    of   copartner,    for    firm    debts,    2405. 
pasturing   stock,    for.      See    tit.   Agistor. 
personal  obligation,   none  implied  by,   2890. 
personalty,  on,  for   repairs  of,   3052. 
pledge.      See  tit.   Pleilgc. 
prior    li'ens,    2876. 
priority  of  lien,   2876. 

order    of    resort    to    different    funds,    2899. 

priority   of   mortgage   for  price,    2876. 
redeniptioii   from   lien 

as  to,   2903. 

contract   in   restraint   of  is   void,    2S89. 

how   redemption   made,   2905. 

right  of  on  foreclosure.     See  tit.  Foreelo.sure  of  SIortgriigeH. 

right   to   redeem,   2903. 

rights  of,  3052. 

rights    of   inferior   lienor,    2904. 

subrogation,    2903. 
respondentia.      See  tit.  Re.spondeutia. 
sale  of  property  to  enforce,   3052. 
seaman's  for  .wages,    3055. 
service,   as   to  lien  for^   3051. 
sheriff  or  other  oflicers,   3057. 
shipmaster's,   for  advances,   etc.,   3055. 
special 

definition   of,    2875. 

mortgage  is.  when,  2923. 

right   of  holder  who  pays   prior   lien,    2876. 
special    partner,    lien    of,   void,   when,    2500. 
stallion.      See    tits.    Stalliims;    Other    i^iens. 
stoppage    in    transitu.      See   tit.    Stoppage   in   Transitu. 
storage,    as    to    lien    for,    1856. 
subject    to    laws    of,    2877. 

subrogation    of   right    of   redemption,    2903,    2904. 
threshing    machines,    li'ens    of    workmen,    etc.      Sec    tit.    other 

Tilens. 
timber,  on.     See  tit.  I-ojjjjer's  l.iens. 
title   not   transferred   by,    2SSS. 
vendee's.     See  tit.  A'enilee. 
vendor's.     See  tit.  Vendor. 
MENOR 

damages   of,  as  to,   3338. 

1193 


INDEX. 

[References  are  to  sections.] 

LIFE    AND    HEALTH    iNSUItANCE.      See    tit.    Life,    HenlMi,    siml 
Accident    Iiisurniice. 

insurable    interest,    2763. 

assignee   of   life   policy   need    have    no   interest,    2764. 
insurance   upon    life,   when   payable,    2762. 

as  to,   generally,   2762,   2763. 
measure   of  i'ndemnity,    2766. 
■  notice    of   transfer,    2765. 
LIFE,     HEALTH,     ACCIDENT,     AND     ANNUITY,     OR     ENDOAV- 

MENT  INSURANCE   ON   THE  ASSESSjMENT  PLAN 
contract  of  insurance,    453g. 

contents  and  effect  of,   453g. 
contracts   which   may  be   made   by,    453d. 
construction   of   chapter,    453e. 
deposit   with   state   treasurer,    453e. 
exemption    from    attachment    and    execution,    4531<. 
expenses,    insurance    commissioner    to    present    bills    for    cer- 
tain, 453o. 
fees,    453n. 
foreign    corporations,    453i. 

conditions   precedent   to   do   business,   453i. 

license   fees,    taxes,   and  penalties,    453i. 
issuance,    renewal    and   revocation,    453i. 
forfeiture   of  right   to   do  business   by   failure    to   pay,    453g. 
formation  of  corporation,  453e. 

fraternal   societies,    exemption    from    this   chapter,    453p. 
insurance  commissioner  to  present  bills  for  certain   expenses, 

4530. 
investments    of,    453e. 
issuing  contracts,  453e. 

lapsing  of  policies,  when  forbidden,  453m. 
legal  existence  before  one  year,   wlien,   453e. 
limitation    upon    right    to    issue    insurance,    453j. 

contract  must  be  founded  upon  written  application,   453j. 

false  or  fraudulent  statements  by  solicitor,  453j. 
membership   before   contracts   issued,   453e. 
penalties,   453m. 

pre-existing   corporation's    right    to    reincorporate,    453f. 
reincorporation    of   pre-existing   company,   453f. 
reservation   and    emergency   fund,    453h. 

accumulation  of  reserve   or  emergency  fund,   453h. 

deposit   of   part    of    fund,    45Sli. 

fund   must  be   returned   to   corporation,    453h. 

investment  of  emergency   fund,   453h. 

1194 


INDEX. 

[References  are  to  sections.] 

LIFE,  HEALTH,   ETC.,   INSURANCE,   ETC.    (continued), 
revoke    authority    to    do    business,    procedure,    4531. 

necessary  parties  to,   453m. 
secret  or  fraternal  society,  what  constitutes,   453p. 
statement  to  be  filed  with  insurance  commissioner,   4531. 

proceedings    to   be   taken    thereon,    4531. 

lilFE   INSURA\"CE 

investment   of  funds   of,   421,   421[.a]. 
LIFE     INSURAXCE     CORPORATIONS.      See     tit.      Mutual     Lffe, 

Heaiili,    aud    Acoirteut    lusuranoe    Corporatloii.s. 
LIGHT    FOR    PIBLIC    USE.      See    tit.    CurporalionM    to    Furuish 

Lig^ht    for   Public    U.se. 

MKES   AND   DISLIKES.     See   tit.   Wills. 
LIMITATION    OF   ACTION 

action    to    establish    property,    community    propertj',    164. 

apprentice,  by,  for  breach   of  contract,   273. 

corporation   organization   to   be   effected   within   one   year,   358. 

defects,   lender   liable  for,    1893. 

demand,  thing  returnable  without,  when,   1895. 

directors    of   corporation,   personal    liability,    309. 

<Hvoroe 

as    to    maintaining,    124-127. 

defeated  by.   111. 
exchange  for,   1905. 

defined,    1902. 

lender  cannot  modify  contract  of,  1905. 

title   to   property,    1904. 
expenses,    borrower   to   bear   when,    1892. 
for  annulment  of  marriage,    S3, 
for   divorce,    124,    127. 
foreign  corporations  may  plead,   406. 
for  recovery   of   stock,    347. 
hiring.      See   tit.   Hiriu^. 
in   general,   1007. 

lien.       See    tits.    Buildiup:    an<l    Loan;    Contract;    Deposit;    Hir- 
ing-;   Savings   and    Loan. 
lien   extinguished   by,    2911. 
liquidated    damages.      See   tit.    DaniagrcN. 
livery    stable,    lien    on    animals,    3051. 

1195 


INDEX. 
[References  are  to  sections.] 

T.TMITATION  OF  ACTION   (continued), 
nuisance,   not  legalized  by   time,    3490. 
nuncupative   will,    for   proof   of,    1290. 
particular  use  as  to,  1930. 

recovery  of  stock,  sold  on  delinquent  assessment,  347. 
LIMITED    INTEREST 

what    is,    692. 
LINEAL    AND    COLLATERAL    WARRANTIES 

abolished,    1115. 
LIQUIDATED    SUM 

damages   for  breach   of  contract  to  pay,   3302. 
LIQUIDATION.      See   tit.    Partnersbip. 
LOAN.      See   tit.    Contract. 

as  to  what  is,  1884.  , 

borrower  to  bear  expenses,  when,   1892. 
borrower    to    repair    injuries,    when,    1889. 
care   required   of   borrower,    1886. 

of  animal  for  use,   1887. 
degree  of  skill  and  care  of  thing,   1888. 
indemnity  to  borrower,  1893. 

injuries   to   thing  loaned,  borrower   to   repair,   when.   IJ'89. 
interest    on,    1905-1920. 
lender  liable  for  defects,   when,   1893. 
lender  may  require  return  of  thing  lent,  1894. 

returnable    without    demand,    when,    1895. 
loan   for   exehauge 
as  to  what  is,   1902. 

contract   cannot   be   modified   by   lender,    1905. 
optional    loan,    1903. 
title    to    property    lent,    1904. 
loan   of  money 

as  to  what  is,  1912. 
interest    on.      See    tit.    Interest. 
amount  by  agreement,  1918. 
annual    rate,    1916. 
as  to,  1912. 

becomes  part   of  principal,   when,    1619. 
legal   interest,    1917. 
on  judgment,   1920. 
what    interest   allowed,    1915. 
may  be  required  by  owner,  'when,   1894. 
money  to  be   repaid  in   current   coin,    1913. 

1196 


INDEX. 
[References  are  to  sections.] 

LOAN   (continued). 

place   of  return,    1896. 

presumed  to  be  on  interest,  1913. 

relending.  by  borrower   forbidden,    1891. 

return   of   thing,    1958. 

returnable    without    demand,    when,    1895. 

ship's   manager's   autliority,    as   to,    2388. 

shipmaster's  authority,  as  to,  2373. 

skill,  what  required  of  borrower,   18S8. 

title  to  thing  lent,   1885. 

use   of    thing   lent,    1890. 
LOCATION 

notices  of,  1159. 
T-ODE    CLAIMS 

boundaries    of,    1426a. 

how    located,    1426. 

location    of,   what   to   contain,    1426. 

record  of,   1426b. 
LODGING-HOUSE.      See   tit.   luukeeperN. 

baggage,    lien    on,    1861. 

lien    on    baggage,    1861. 

posting  statement  of   charges   required  by,    1862. 

rent,  when  payable,   1947. 

sale   of   unclaimed   baggage   by,    1862. 

term,   what   presumed   hiring   for,    1943. 
LODGINGS 

hiring  for   indefinite    teini,    194  4. 
LOGGERS 

lien   of,   3065. 

ceases,  when,   3065. 

upon    what    lien    subsists,    3065. 
LOSS 

occasioned   by   collision    of  vessels,    how    apportioned,    973. 
LOST    CERTIFICATES.      See    tit.    Certlflt-ato.s    of    Slock. 

action    for    new    certificate,    328. 

issuing  of   new   certificates,    328. 

judgment,    328. 

parties   to  action,   328. 

proceedings  on  action  for,  328. 
summons    and    notice,    328. 

proceedings    on    answer,    328. 

1197 


INDEX. 
[References  are  to  sections.] 

LOTTERY 

or  lottery  prize,   not  insurable,   2532. 
LUGGAGE.     See    tit.    Bagg^a^e. 

LUNATICS.      See   tit.   Person.s  of  Uusouud  Mind. 
MAGISTRATE 

to    aid    societies    for    prevention    of    cruelty    to    children,    etc., 
607c. 
MAIIVTEIVAIVCE.      See    tits.    Divorce;   Parent   anil    Child. 
MAJORITY 
age   of,    25. 

joint,   words,   giving,   12. 
mining,    partnership,    control    by,    2520. 
partners,    of.    authority,    2428. 
MALES 

attain   majority,   when,   25. 
MALICE 

exemplary    damages    for.      See    tit.    Daniage.«i. 

as    to    generalise    3294. 
interest   as   damages.      See   tit.   Interest. 

as   to   generally,    32S8. 
not  inferred,   when,   48. 
MALICIOUSLY  INJURING 

telegraph   and   telephone   property,    537. 
MANUFACTURE 

agreement  to  need  not  be   in   writing,    1741. 
implied  warranty  on  sale  of,   1769. 
MANUFACTURER 

warranty  against   latent   defects,    1769. 
MAP 

of  railroad,  to  be  filed,   466. 
of    wagon    road,    513. 
MAP   AND    PROFILE   OF    RAILROAD 
must   be    certified,    466. 
to  be  filed,   466. 
MARINE    CARRIER.      See    tits.    Carriers    of    Goods;    Carriers    of 

Passengers. 
MARINE   INSURANCE.     See   tit.   Fire,  Marine,   and  Title   Insur- 
ance. 
abandonment,    2716. 

acceptance  not  necessary,   2727. 
irrevocable,    2729. 
is    conclusive,    2728. 
agents   of   insured   become   agents    of   insurer,    2726. 
as   to  wliat  constitutes,   2716. 
effect  of,   2724. 

1198 


INDEX. 
[References  are  to  sections.] 

MARINE    INSURANCE    (continued). 
ubaudouiiient    (continued). 

freightage,   liow  affected  by,    2730. 
how   made,    2721. 
may  be  defeated,  when,  2720. 
must    be    unqualified,    2718. 
abandonment,   notice   of,    requisites,    2722. 
omission    to   abandon,    2732. 
otlier   causes   cannot   be   relied    on,    2723. 
refusal   to   accept,    2731. 
requisite    of   notice    of,    2722. 
waiver  of  formal,  2725. 
when  insured  may  abandon,   2717. 
when   may  be  made,  2719. 
concealment,    2669. 

concealment   which   only   affected   risk,    2672. 
information   must   be   communicated,    2669. 
material    information,    2670. 
presumption    of    knowledge    of    loss,    2671. 
definition   of,    2655. 
implied   warranties,    2681. 
of  neutral  papers,    2688. 
of  seaworthiness,   2681. 

as    to    w^hat    is    seaworthiness,    2682. 

degrees  of  at  different  stages  of  voyage,  2685. 

seaworthiness  for  purposes  of  Insurance  on  cargo,  2687. 

things    required    to    constitute    seaworthiness,    2684. 

unseaworthiness   during   voyage,    2686. 
when  complied  with,   2683. 
insurable  interest,   2659. 
expected   freightage,    2662. 
freightage,   what   is,    2661. 
in   sl^p,   2659. 

interest    in    excepting   freightage,   what   is,    2663. 
interest  in  profits,  what  may  be  insured,  2664. 
interest  of  charterer,   2665. 
interest  reduced   to  bottomry,   2660. 
loss,   2701. 

actual  and   constructive  loss,   2703. 

actual  total   loss,  what  constitutes,   2704. 

constructive    total    loss,    2705. 

presumed  actual   loss,   2706. 
average   loss,    2711. 

1199  •        -. 


INDEX. 

[References  are  to  sections.] 

MARINE    INSURANCE    (continued). 
loss   (continued). 

insurance  on  cargo  wlien  voyage  broken   up, 
cost  of  resliipment,  2708. 
when  insured  entitled  to  payment,  2709. 
partial    loss,    what    is,    2702. 
total  and  partial   loss,    2701. 
measure    of   indemnity,    2739. 

apportionment  of  valuation,   2739. 
arrival    of    thing    damaged,    2742. 
estimating   loss    under    open   policy,    2741. 
general  average.     See  tit.  General  Average. 

as   to   contribution  under,   2745. 
labor   and   expenses,    2743. 
one-third   new    for    old,    2746. 
partial    loss,    2737. 
profits  separately  insured,  2738. 
valuation  applied  to  profits,   2740. 
apportioned,  2739. 
when    conclusive,    2736. 
representations,    2677. 

effect    of    intenti'onal    falsity,    2676. 
falsity,   intentional,   effect   of,    2676. 
representation    of    expectation,    2677. 
voyage    and    deviation,    2692. 

course  of  sailing,   how  determined,   2693. 
deviations,   as   to    what   constitutes,    2694. 
exonerates    insurer,    when,    2697. 
when    improper,    2695. 
when    proper,    2696. 
voyage    insured,    how    determined,    2692. 
MARIIVE    INSURANCE    CORPORATIONS 

investment   of   funds,    of,    421,    421  [a]. 
MARINE    LAW.      See    tit.    Ships    and    Shipping. 
MARK.      See    tit.    Signatiire. 

as   signature,    14. 
MARRIAGE 
annulment,  S3. 

conclusiveness    of    judgment    for,    S6. 

custody  of  children  on,   85. 

does  not  affect  legitimacy  of  cJiildren,   84. 

grounds    for,    82. 

limitation   of  action  for,  83. 

time   when   action   to   be   brought,    S3. 

who   may   sue   for,    83. 

1200 


INDEX. 
[References  are  to  sections.] 

MARRIAGK    (continued). 

birth   of  issue   revokes   will,   129S. 

breach    of   promise,    damages    for.      See    tit.    Drvaoli    of    I'r    m- 
ise  of  Marriage. 

by   minors,    56. 

by  whom  marriage  may  be  celebrated,  or  solemnized,  Tn 

form   of  celebration   or  solemnization,    71. 

requirements    of    persons    solemnizing,    72. 
causes   for  annulling  marriage.     See  tit.   Divorce. 
certificate   of,    73,    79. 

delivery  of  copy  to  parties,  73,  79. 

filing  with   recorder,   73,   79. 

marriage  without,   79. 

registry   of,   69a. 

requisites   of,    72. 
conditions    in    restriction    of,    void,    710. 
conflict   of   laws    relating   to,   63. 
consent 

alone   does    not   constitute,    55. 

how   proved,    57. 

minors,   of,   when   valid,    57. 
contract    in    restraint    of,    void,    1676. 
contracted  without   the  state,    63. 

custody   of  children    where    marriage   annulled,    S,'). 
declaration    of 

by  action  of  court,  76. 

by   members   of   religious   denomination,    70a. 

how    made,    75. 

penalty   for    failure    to    record,    79a. 

recording,    79a. 

subscription  to  and  attestation  of,  76. 

to   be   acknowledged  and   certified,    77,   7S. 
and  recorded,   77. 

to   contain    what,   76. 

when    may   be   made,    76. 

where  there   is  no   record,   76. 
definition    of,    55. 
dissolution   of.     See  tit.   IJi^-orce. 

how    dissolved,    92. 
divorce.      See    tit.    Divorce. 

examination,    on    application    foi-    license,    72. 
how    dissolved,    90. 
Incestuous 

as   to  what  is,   and   effect   of,   59. 

judicial    declaration    of,    SO. 

1201 


INDEX. 
[References  are  to  sections.] 

MARRIAGE    (continued). 

incompetence    of   parties,    59. 

infants,    effect    on    parental    authority,    20  4. 

legitimacy  o£  children 

not  affected  by   annulment  of  marriage,   84. 

of  void  or   dissolved   marriage,    194. 
license 

as  to,  69. 

examination    of    applicant    for,    69. 

necessity    of,    69,    72,    79. 

requisites   of,   69. 
minors,    capable    of    marriage,    56. 
Mongolians   with    whites   void,    60. 
mulattoes  with  whites  void,  60. 
negroes   with  w^hites  void,    60. 
of  man,  effect  on  his  will,  1299. 
of  whites  and  negroes   or   mulattoes,   void,    60. 
of  woman,   effect  on  her  will,   1300. 
out  of  state,  valid,  when,   63. 

promise  of,   concealed  unchastity   releases   from,    62. 
proof  of,   how   made,   57. 
recording   declaration   of   marriage,    79a. 
release    from    contract,    when,    62. 
restraiint    of   voids    contract,    167  6. 
second 

during  life  of  spouse,  61. 

void,    prior,    annulled,    61. 
settlement.      See   tit.    Marriage   Settlement, 
solemnization 

by  whom  may  be  made,  70. 

examination    of   applicant,    72. 

form   of,   71. 

how   made.    68. 

members    of    particular    religious    denomination,    79a. 

non-compliance  with   statute  by   third  person,   effect   of,    6S. 

substantial    requi'sites,    72. 
statute  of  frauds.     See  tit.   Statute  of  Frauds. 

as    to,    162  4. 
subsequent    marriage,    when    illegal    and   void,    61. 
test,  validity   of  marriage,   either  party  may,   78. 
unchastity,    concealed,    grounds    for    release    from    promise    of, 

62. 
validity   of,    to   be   determined   and   declared   by    court,    78. 
voidable   marriages,   as    to,    58. 

1202 


INDEX. 

[References  kre  to  sections.] 

• 

MARRIAGE   (continued), 
void  marriages,    80. 

to   be   determined  and   declg-red   by  court,   SO. 
what   constitutes,    55. 

ward,   of,   supersedes   guardian,   when,    254. 
will,  effect  of  marriage  on  previuu.s,  129S-1300. 
without    a   license,    79. 
MARRIAGE   SETTLEMENTS 
as  to,  generally,  176-181. 
contracts    of,    how    executed,    176-181. 
effect  of  recording,  180. 
executed    how,    178. 
minors  may  make,  181, 
may    not   make,    181. 
to    be    acknowledged    and    recorded,    179. 
effect  of   recording,    180. 
MARRIED    WOMEIV.      See    tits.    Aek,iiowledgmeiit ;    AVills. 

building    and    loan    stock.       See    tit.    I.niiil    aud    BiiildiiiK    Cor- 

poratioii.s. 
conveyance    of,    effect,    1187. 
dividends  paid  to,   325. 
grant  and  fonveyance   by 
as   to,    generally,    1093. 

mortgage    by.      See    tit.    Mortgagre   of   Separate    Property   by 
Married    Woman. 
power   of  attorney  of.      See  tit.   I'o>ver  of  Attorney  of  Married 

AVonian. 
homestead  stosk,   may   be   owned   by,   561. 
may    hold    stock    in    savings    bank,    575. 
may  make,  alter,   or  revolte  will,   1273. 
may   transfer   stock,    325. 
power    of   attorney   by,    1094. 
proxy    of,    325. 

remedies  against.     See  tit.  Reniedie.«i  Agaiii.st  5Iarrled  A\'oiiirn. 
savings  and   loan  stock   may  be   owned  by.      See   tit.    lisnid   and 

Building-  Corporations. 
transfer  of  stock  by,   325. 

will,    disposition    of    separate    property    l)y,    1272. 
how   executed   and   proved,    1273. 
MARSHALING    ASSETS 

as  to   order  of,   2899,   3433. 
MASCULINE    GENDER 

includes  feminine  and  neuter,  14. 
MASTER  AND  APPRENTICE 

apprentice,   poor  and   homeless   minor,    268. 
approval    of   superior   court   necessary,    when,    265. 

1203 


INDEX. 
[References  are  to  sections.] 

• 

MASTER  AND   APPRENTICE    (continued). 

duty  to  inquire  into  the  treatment  of  minor  apprentices,   270. 
enticing  away   apprentices,    liability   for,    275. 
hearing  of  complaint  of  apprentices,   271. 
homeless  minor,  apprenticing  of,  26S. 
Illegitimate  child  may  be  bound  by  mother,   265. 
incapacity   of  parent,   trial   of   by   jury,   267. 

what   to   contain,    266. 
jury   trial  of  incapacity   of  parent,   267. 
liability  of  apprentices  for  misbehavior,   etc.,   274. 

of  master  for  breach  of  covenant,   273. 
master    to    deliver    apprentice's    money    and    other    property, 

269. 
master  to  keep  apprentice  in  state,  269. 
minors  may  be  bound,  when  and  to  wliom,  264. 
misbehavior    of    apprentice,    etc.,    liability    for,    274. 
persons  who  may  bind  minor  with  his  consent,   265. 

an   executor,   when,   265. 

his    father,    265. 

his  legal  guardian,  265. 

his    mother,    265. 
poor  minor,  apprenticing  of,    26S. 

power  of  court  to  discharge  from  apprenticeship,   272. 
quitting   business,   master   released   from   contract   of   appren- 
ticeship,   276. 
release    of   master   moving   out   of   state   or   quitting   business, 
276. 
MASTER    AND    SERVANT.      See    tits.    Damages;     Employment; 
^      Negligence. 
abduction    of    servant,    49. 
account,  employee  to,  1946. 
accounting  by   servant,    2014. 

apprenticeship.      See    ti't.    Master    and    Apprentice. 
assumption   of  risk   by   servant,   1970. 
compensation 

for  service  without  employment,  2078. 

from   successor   of   employer,   1998. 

of   employee   dismissed  for  cause,   2002. 
leaving    for    cause,    2003. 
confidential  employment.     See  tit.  Trusts. 

continuance  of  service   after   death,    etc.,   of   employer,   1998. 
contract 

of    employment    defined,    1965. 

of   services   limited   to   what    time,    1980. 

1204 


INDEX. 

[References  are  to  sections.] 

MASTER  AND   SERVANT   (continued). 

damages   against   master.      See   til.    Damages. 

for  breacli  of  indenture,  273. 
death 

of  emploj-ee,  1997. 

of    employer,    1996,    1997. 

of   joint   employee,    1991. 
definition    of  servant,    2009. 

delivery   of   employee,   without  demand,   as   to,    1987. 
discharge    of    servant,    vi'hen,    2015. 

grounds    for,    2015. 
disniissal 

for    cause,    compensation,    2002. 

grounds   for,    2002,    2015. 
duties 

of  employee   for  his  own  benefit,   1979. 
for  reward,   1978. 

of   gratuitous    emploj-ee,    1975. 
employee 

not  bound  to  deliver  without  demand,   1987. 

to  follow  directions,   1981. 

to  obey  employer,  1981. 
employment,   definition    of   contract   of,    1965. 
enticement  of  servant,    49. 

fellow  servant,   liability  of  master  for   acts   of,   1970. 
gratuitous    employee,    duties    of,    1975. 

hiring^ 

renewal  of,   2012. 

term  of,  2010. 
incapacity 

of   employee,   discharge   for,   2000. 

of    employer,    relation    not    determined   by,    when,    1991 

of  master  terminates  relation,  1996. 
indemnifying  employee 

employer  not  required  to,  when,   1970. 
required    to,    when,    1969. 
indemnity    against   acts    of    servant,    contract   of,    2775. 
injury  to  servant 

by  third  person,   49. 

forbidden,    49. 
joint    employees,    survivor's    duty,    1991. 
master,    liability    to   servant,    1969. 
mutual   rights   to  protection,   49,   50. 

1205 


INDEX. 
[References  are  to  sections.] 

MASTER  AND  SERVANT    (continued). 
uegligence    of    employee. 

discharge    for,    1990. 

liability  of  master  for,   1990. 
negligence   of   master,   liability    for,    1971. 
obey,    employee    required    to,    19S1. 
power  of  attorney,   1977. 

preference    to    be    given    employer's    interest,    198S. 
presumed    to    be    monthly,    when,    2011. 
renewal   of  hiring,    2012. 
renewal    of    term    of    employment,    2012. 
servant 

definition  of,  2009. 

to   pay   over   without   demand,    2011. 
service   without    employment,    as   to,    2078. 
skill 

degree    employee    required   to    use,    1984. 

degree  required  of  employees,   2071. 
substitute    employee    liable    for,    1989. 
surviving    employee,    as    to    duty    of,    1991. 
term    of    employment,    2010,    2011. 
term    of   hiring,    2010. 
teriniuatiou  of  relation 

at   will,    1999. 

by  death  or  incapacity  of  employer,   1996. 

by    employee   for   fault,    2001. 

by  employer  for  fault,   2000. 

death    of    employer    does    not,    when,    199fi,    1697. 

what   works   a,    1999. 
term  of  service,  2013. 

time    of    employee    belongs    to    master,    2013. 
title   to  things   acquired   by   employee,   19S5. 
usage,    employee    to    conform    to,    1982. 
MASTER,    SHIP'S.      See    tit.    Ships    and    Shipping. 
MATKS    AND    SEAMEN.      See    tit.    Seamen. 

certificate  by  master  in  favor  of  seamen  on  loss  of  ship,   2059. 
death  during  voyage,  2062. 
definition   of  mate,   2048. 

of  seamen,   2049. 
desertion    of    ship    without    cause,    forfeits    wages,    2063. 
disabled  seamen  entitled  to  wages,   when,   2060. 
how  engaged  and  discharged,  2050. 
law  governing  seamen,  2066. 

maintenance   of  seamen   during  sickness,   2061. 
not  bound'  to  go  to  sea  in  unseaworthy  vessel,   2051. 

1206 


INDEX. 
[References  are  to  sections.] 

MATES  AND  SEAMEN  (continued). 

not   to   lose   wages    or   lien   by    agreement,    2052. 
seamen   cannot   ship    goods,   2064. 
special  agreement  with  seamen,  2053. 
theft  by   forfeits   wages,   2063.  ' 
■wages,  forfeiture  of,  how,  2063. 
not   lost   by   wreck,   when,    2058. 
of   seamen    depending    on    freightage,    2054. 
where   voyage   is  broken   up   before   departure,   2056. 
when  wages  of  mate  and  seamen  to  begin,   2055. 
wrongful   discharge   of,    2057. 
MAXIMS 

■    of   jurisprudence,    3509-3543. 
MAYOR 

marriages    may    be    solemnized    by,    70. 
may   take   acknowledgments,   1180. 
MEANDERS.      See   tit.    AVaters,   Bouiiilarics    by. 
MEASURE    OF    DAMAGES 

for   breach    of   contract,    3300. 

breach    of    agreement    to    buy    personal    property,    3311. 
to   buy    real   property,    3307. 
to  convey  real  property,    3306. 
to   pay   for   personal   property   sold,    3310. 
to   sell   personal   property,    3310. 
where  not  paid  for,  3311. 
vi'here  paid  for,  3311. 
breach    of    carrier's    obligation    to    deliver,    3315. 

to   receive   goods,    3315. 
breach   of  contract   to   pay   liquidated  sum,    3302. 
of    covenant    against    encumbrances,    3305. 
of  covenant  of  seizin,   3304. 
of  promise  of  marriage,   3319. 
of  warranty   of   authority,    331 S. 

of  warranty  of  quality   of  personal   property,   3313. 
for   special  purpose,    3314. 
carrier's   delay,    3317. 

di'shonor   of   foreign   bill   of  exchange,   3303. 
must    be    certain,    3301. 
for  T«-roiigs 

breach    of   obligations   other   than    ccmtract,    3333. 

as   to   generally,    3333,    3334. 
conversion    of    personal    property,    3336. 
application  for  benefit  of  owner,   3337. 

1207 


INDEX. 
[References  are  to  sections.] 

MEASURE   OF   DAMAGES    (continued). 
for  wrongs    (continued). 

damages   for,   lienor,   3338. 
for   seduction,    3339. 

injuries   to   animals,    3340. 

wrongful  holding  over,   3335. 

wrongful    occupancy   of   real   property,    3334. 
MECHANIC'S    L,IKN 
assessments   by,    592d. 
by-laws    of,    592c. 
capital  stock  of,   592. 
certificates    of,    592. 
formation  ,  and    powers,    591. 
organization,  591. 
poTvera 

to   acquire,   use   and   sell   property,    592b. 

which  may  be  conferred  on  trustees,   etc.,   592a. 
pre-exi'sting  corporations  may  come  in  under,   592e. 
stockholders    rights    and    liabilities,    592. 
MECHANICS'    LIEN 

as    to   regulation   of,    3059. 
homestead  liable   to.    1241. 
MEETING  STEAMERS.      See  tit.  Rules  of  Navigation. 
"MEMBERS"    AND    "STOCKHOLDERS."      See    tit.    Corporations. 
MEMBERSHIP 

in  co-operative  corporations,  653u. 

of  co-operative  agricultural,  etc.,  associations 

as  to  generally,   653n. 

conditions    of,    653p. 

fee    of,    653q. 

qualifications   of,    653p. 

transfer    of,    653n. 
MEMORANDUM.      See   tits.    Auctioneers;    Statute   of  Frauds. 
binds    parties,    when.    179S. 

to   contain   what,   1798. 
declaring  a  trust,  2254. 
of    sales    by    auctioneer,    1798. 
on   contract   of   sale 

of  personal  property,   1739, 

of  real   property,   1741. 
MENACE.      See   tit.    Contract. 
as    to    what    constitutes,    1570. 
consists   in  what,   1570. 

merchandise,   warranty   implied   as   to,    when,    176S-1771. 
rescission   for,    1689. 

1208 


INDEX. 
[References  are  to  sections.] 

MENTAL   CAPACITY.      See   tit.    Wills. 
MENTAL  DISEASE.      See  tit.  Wills. 
MERCHANDISE 

not    in    existence,    warranty   as    to,    176S. 
MERGER 
of  interest 

destroys    liiring,    wlien,    1932. 

destroys    servitude,    810. 
METER 

rigtit  to   inspect  gas,   631. 
MILL-SITE 

location   of,    1426J. 
record    of    location,    1426k. 
MINE.     See    tits.    Miues;    Mining    Corporations. 
claims.      See    tit.    Mining-    Claim. 

affidavits    of    work    upon    and    recording,    1159. 

liydraulic.      See    tit.    Hydraulic    Mining. 

recording   notice    of    location    of,    1159. 
affidavit  of  work   upon,    1159. 
fixtures  attaclied  to,   661. 
mortgage    of    macliinery    in,    2955. 
notices    of    location,    1159. 
partnership   in,   2511,    2518. 
MINING.      See   tits.    Lode   Clainisj   Placer   Claims. 
MINIMUM    CAPITAL.      See    tit.    Corporations. 

required   to   be   paid   in   before   incorporation,    290a. 
MINING   CLAIM.      See    tits.    Location    Notice;    Lode    Claims;    Pin- 

cer    Claims;    Tunnel    Right. 
affidavit    of    worli,    1159. 

recorder's  fee  for,  1426n. 
amendment  of  notice  of  location,  14261i. 
certificate   of,    recorder's   fee,    1426n. 
delinquent    co-o^vners 

noti'ce    to,    1426o. 

payment  by,   1426o. 
development   work,    neglect   to   perform,    1426s. 
location    of 

notice   of,   amendment   to,    14261i. 

recorded    without    acknowledgment,     1159. 
mill-site.     See  tit.  Mill-Site. 
mining  district,  effect  of  statute  on,   1426r. 
neglect   to    perform   yearly    work,    1426s.  ^ 

record  of   location   of 

copies   of   as   evidence,    1426q. 

to    be    received    in    evidence,    1426p. 

1209 


INDEX. 
[References  ave  to  sections.] 

MINING  CLAIM   (continued), 
record   of  yearly  work,   142Gm. 
recorder's     fee,     1426n. 
recording-    notl'ce    of    location,    1159. 
surveyed   claims,    1426i. 
yearly  ivork  required 

as  to   generally,   14261. 

neglect    to    perform,    effect,    1426s. 
MINING    CORPORATIONS 

balance  sheet   to  be   kept  and  posted,    5S8. 

books  and  balance  sheets  to   be  kept  by  secretary,   588. 

books   and   papers,   right   of   stockholders   to   inspect,    588. 

stockholder's    right   to   inspect,    588. 
cou8oliilatiou 

certificate   of  consolidation,   filed  where,   587a. 
to   be   signed    by   whom,    587a. 

consent  of  stockholders  in  writing,  587a. 

effect  of,    587a. 

election  of  trustees  on,  5S7a. 

limitations   on,    587a. 

notice    must    be    giveUj    5S7a. 

proceedings    on,    587a. 
discovery    of    ore,    superintendent    to    report,    588. 
exaiiiiuntiou    of  iiiiue 

as    to    right    of,    5S9,    590. 

effect   of   refusing   stockholder   right   to   make,   589,    590. 

liability  for  refusal   of  right  of,   to  stockholders,   590. 

stockholders'    right 
to   inspect  books,   588. 
to    make    examinati'on,    589,    590. 
failure   of  superintendent  to   obey   orders,   removal,   589. 
liability  of  officers  and  directors,  590. 
monthly  account  to  be  filed  by  superintendent,   588. 

report  attached  to  account  open  to  inspection,  588. 

what  must  show,  588. 
monthly   balance   sheet   to   be   verified   by   oath   of   whom,    588. 
receipts   and   disbursements^   account   of  to   be   kept,    588. 
removal   of  superintendent  in   failing  to  obey   orders,   589. 
reports    and    accounts    by    superintendent,    588. 
right    to    examine    bocdcs,    589. 
stockholder's  ri'ght  to  visit  mine  with   expert,   589. 

duty    of  superintendent,    589. 

liability  of  officers  and  directors,   590. 

refusal   to   permit    examination,    damages,    590. 

removal    of    directors    for    refusal,    590. 

1210 


INDEX. 
[References  are  to  sections.] 

MINING  CORPORATIONS    (continued). 

stock   issued   at   transfer   agencies,    .587. 

surrender   of   certificate    on    transfer,    587. 

transfer  agencies  of,   586. 

may    establish   in   other   states,    586. 
MINING    DISTRICTS 

effect   of   statute    of    1909    on,    1426r. 
MINING    PARTNERSHIP 

contract   i'n   writing   binding,   when,    2519. 

exists,   w^hen,    2511. 

express    agreement    not    necessary    to    constitute,    2512. 

governed  by  owners  of  majority  of  shares,   2520. 

lien    of   partners,    2514. 

mine    partnersliip    property,    2515. 

owners    of   majority   of   shares    govern,    2520. 

partnership   not  dissolved  by  sale   of  interest,    2516. 

profits    and    losses,    how    shared,    2513. 

purchaser    takes    subject    to    liens,    when,    2517. 
takes  with   notice  of   lien,   when,    2518. 

sale    of    interest    does    not    dissolve    partnership,    251 6. 

MINOR.      See    tit.    Infant. 

cannot  disaffirm  certai'n   obligations,   37. 

cannot  disaffirm   contract   for   necessaries,    36. 

cannot  give  a  delegation  of  power,   33. 

contracts    by,    disaffirmance.      See    tit.    Di.*iaflirniniic<'. 
as    to    generally,    34. 

custody    of,    32. 

lease  of  city  lot  of  for  more  than  ten  years,  void,   718. 

liability   for  wrongs,   41. 

may   hold   stock   in   savings   bank,    575. 

not    liable    for    exemplary    damages,    41. 

period    of   minority,    how    calculated,    26. 

personal    ri'ghts,    generally,    43. 

status   of,    how   changed,    28. 

who   are,    25. 
3IISOEMEANOR.    lo    entice    away    apprentices.      See    tit.    >IiiNtrr 
and    ApiirciiHeo. 

foreign  building,  etc.,  agent  not  complying  willi  statute  com- 
mits,   646. 

savings  corporation,  president  of,   guilty   of,    when,   581. 
MISNOMER 

does    not    invalidate    coiporato    instruments,    when,    357. 
■^IISREPRESENTATION.      See    tit.   Fraud. 

1211 


INDEX. 
[References  are  to  sections.] 

MISTAKE 

as    affecting    right    to    enforcement    of    specific    performance, 

3391. 
disregarding  erroneous   parts   of   instrument,    1640. 
either  of  law   or  fact,   1576. 
in   wills,    1340. 
of  fact 

as  to  what  constitutes,  1577. 
of   foreign   laws,    as   to,    1579. 

effect   of,    1579. 
of  law 

as    to   what    constitutes,    157S. 
property    acquired    by,    1713. 

of  contract   for,   1689,    3407. 
specific  performance,   prevents,   when,    3391. 
trust  arising  from,  2224. 
will,   in,   effect   of,    1340. 
MISTAKE    OF   FACT.      See    tit.    Recovery   Back  of   Money    Paid. 
MOB  VIOLENCE.     See  tit.   Strikes,  Mob  Violence,  Etc. 
MOCK   AUCTION.      See    tit.    Auction. 
MONEY.     See  tit.  Loan. 

coterminous   owners   bound   to   maintain,    841. 
duty  of  coterminous  owners  in  relation  to,   841. 
MORAL   OBLIGATION.      See   tit.   Obligation. 

as  a  consideration,   1606. 
MORTGAGE.      See    tits.    Lien;    Mortgage    of   Personal    Property; 
Mortgage   of  Real   Property. 
adversely  held,  property  may  be,  2921. 
as  to  what  property  may  be  mortgaged,  2921. 
assignment   of  debt 

by  acknowledgment   and   recording,   2936. 
effect   of  to  pass  security,   2936. 
record   of  is  notice,    2934. 
secured,   passes,   mortgage,   2936. 
assignment  of,   recording,    2934. 
benevolent  association,  given  by,   598. 

bottomry  and  respondentia  not  affected  by  chapter  on  mort- 
gages, 2942. 
building  and  loan   association   may   make,   640. 
certificate  of  discharge,  2939. 

by   foreign   executors   and   administrators,    2939%. 
discharge    of   mortgage   by   foreign    executors   and   adminis- 
trators, 2939%. 
satisfaction  of  mortgage,  2941. 
deed  absolute   is,   when,   2924,   2925. 

1212 


INDEX. 
[References  are  to  sections.] 

MORTGAGE    (continued). 

defeasance,    transfer   made   subject   to,    2925. 
definition,   2920. 
ill.seharse  of 

by   foreign   executors   and   administrators,   293914. 

certificate   of,    2939. 

form   of,   2938. 

how  made,  2938. 

liability   for  refusal   to   execute  certificate,    2932. 

of  record,  how,  2937,  2940. 

recording  discharg'e,  2940. 
does   not   entitle  mortagee    to    possession,    2927. 
duty  of  mortgagee  on  satisfaction,  2941. 
encumbrance   included   in   term,   1114. 
execution   by  attorney   under   power,    2933. 
execution,  formalities  of,   2922. 

executors  and  administrators,  foreign,   discharged  by,   2939%. 
extends   to  and   includes  what,  2926. 
factor  may  not  make,   2368. 
foreclosure.      See   tit.   Mortgage  ForecloMiire. 

as  to,   2931. 
foreign  executors  and  administrators,  discharge  of  by,  2939  i/^. 
form  of,  2948. 

of  discharge,  2938. 
homestead 

liable   for,    when,    1241. 

mortgaged  how,   1242. 

of  lunatics.     See  tit.  HomeNtead. 
how  discharged,  2938. 
Insurance  on   property  that   is,   2.541. 
is  subject  to  the  general  law  of  liens,  2877. 
lien   of  special,   when,   2923. 
lien  on  what,   2926. 
must  be  in  writing,  2922. 
not  a  personal   obligation,   2928. 

notice  to  mortgager  not  given  by  recording  assignment,  2935. 
of  chattels.      See   tit.  Morfgapre  of  Personal   Property. 
of  property  by  wagon   road  corporation,   522. 
on  what  a  lien,  2926. 

passes  by   assignment  of  debt  secured,   2936. 
personal  obligation,   is  not  a,   2928. 
possession,    mortgagor   entitled    to,    exception,    2927. 
power  of  attorney   to  execute,   2933. 
power  of  sale  conferred  upon  mortgagee,  2932. 

1213 


INDEX. 

[References  are  to  sections.] 

MORTGAGE    (continued). 

l»OT»-er  of  sale,  etc.    (continued). 

when   deemed   part  of  tlie  security,   858. 
priority   of   given    for   purcliase   money,    2897. 
property  adversely   held  may   be   mortgaged,   2921. 
property  that  may  be  mortgaged,   2947. 
railroad,   mortgage  by,    456. 
recording,   as  to,   1163. 

in  general,   2952. 

of  assignment  of,  2934. 

not  notice  to  mortgager,  2935. 

of  certificate  of  discharge,  2939. 

of  defeasance,   2950.  » 

redemption   from   sale   under  foreclosure   of,   2903-2905. 

right  of,   2931. 
religious  association,   execution   by,   598. 
respondentia,   is  not  subject   to   the   law,   2942. 
satisfaction,    duty    of    mortgagee    on,    2941. 

as  to  generally,  2942. 
shipmaster's  power  to   hypothecate,   2377. 
ships,   mortgage  of,  2971. 

recording  of  necessary,   2958. 
statute   of  frauds   as   affecting,   2922. 
subsequentlj'  acquired   title,   covered   by,    2930. 
title,    subsequently  acquired,   covered  by,   2930. 
transfer  made  subject  to  defeasance  is,  2925. 
transfer,  when  mortgage  and  when  pledge,  2924. 
trust,  an  express,  to  mortgage  real  property,  857. 
wagon   road   corporation,   executed   by,    522. 

waste,   not   permitted,    2929.  ^ 

writing,  must  be  in,   2922. 
MORTGAGE  FORECLOSURE 

rigiit  of  redemption,   2931. 
MORTGAGE    IXSURAXCB 

amount   of  securities  that  may  be   guaranteed,  453cc. 
appraisement  of  property   of,    453gg. 

authority  of  insurance  commissioner  necessary,  453aa,  453cc. 
capital   stock 

required  to  do  business,   453cc. 

of  another  company,   may  not  invest   in   or   hold,   453cc. 
certificate  of  authority  to  do  business  necessary,  453aa,  453cc. 
certificate   of  mortgage   participation  and   guaranteed   securi- 
ties,   legal   investments,    453ff. 
"debts,"   policies   of  mortgage   insurance   do  not   constitute   of 
the  company,    453cc. 

1214 


INDEX. 
[References  are  to  sections.] 

MORTGAGE  INSURANCE    (continued). 
definition  of 

entire  mortgage  guaranty,  453bb. 

mortgag-e   insurance  company,   453bb. 

mortg'age-participation    certificate,    453bb. 

policy   of  mortgage   insurance,   453bb. 

"security,"  as  used  in  mortgage  insurance  statute,  453bb. 
dividends,    restriction    on    making,    453dd. 
entire  mortgage   guaranty,   defined,   453bb. 
first  lien   security  only,   453cc. 
guaranteed  securities  made  legal  investment  for  trust  funds, 

etc.,  453ff. 
"indebtedness,"    policies    of    mortgage    insurance    do    not    con- 
stitute  of  the  company,   453cc. 
investments  by  permitted,   453ee. 

kind  and  amount  of  securities  that  may  be  guaranteed,  453cc. 
mortgage   insurance   company,   defined,   45  3bb. 
mortgage-participation    certificate    defined,    453bb. 
must  accumulate  a  surplus,  453dd. 

not  to  own  or  hold  stock  of  another  company,  453cc. 
not  to  loan  to  officers,  453cc. 

penalties  for  violations  of  statutory  provisions,   453cc,  453gg. 
pblicies   of   mortgage   insurance   do   not   constitute    "debts"    of 

tlie  company,   4  53cc. 
policy  of  mortgage  insurance  defihed,   4r)3bb. 
quarterly  reports  to  inNurnuoe  ooninilsslouer 

as   to   generally,    4.53gg. 

when   policy   entire   mortgage   guarantee,   453gg. 

when   policy  mortgage-participation  certificate,   453gg. 
securities  deposited  with  state  treasurer,  453ff. 

substitution   of   securities,   453ff. 
subject  to  insurance  laws,  453aa. 
substitution  of  securities  of,   453ff. 
supervision   of  banking  department,   453ff. 
surplus,   must  accumulate  a,   453dd. 

trust  funds  may  be  invested   in  mortgage-participation  certi- 
ficates and  guaranteed   securities,   4.53ff. 
MORTCAGK     OF     PERSONAL     PROPERTY.       See     tit.     Chattel 

Mortgage. 
as   to  what  property   may  be  mortgaged,   2955. 
certain  sections  not  api)licable   to  certain  sliips,   2971. 
continuance  of  lien  of  mortgage  on  crop,   2972. 
distribution  of  proceeds  of  sale  under  process,   2970. 
foreclosure,  distribution  of  proceeds  of  sale  under,  2070. 
foreclosure   of,   how   made,    2967. 

1215 


INDEX. 

'  [References  are  to  sections.] 

MORTGAGE  OF  PERSONAL  PROPERTY   (continued), 
form  of,  2956. 

levy  upon  mortgaged   property,   2968. 
limitations   on   right  of  levy,    2969. 
may  be  recorded,   2963. 

may  be   taken  by  mortgagee  as  a  pledge,   when,   2966. 
mortgage  of  ships,  void  as  to  third  person,  when,  2958. 
mortgaged  property  may  be  levied  upon,   2968. 
property  exempt  from  rriortgage,   when,  2965. 
recordation 

certified  copy  may  be  recorded,  when,   2964. 
in   different  places,   2962. 
of  common  carrier,  2961. 

personal  mortgage  may  be  recorded,  2963. 
where  property  in  transit,  2960. 
where  to  be  made,  2959. 
ships,    certain   sections   not   applicable   to,    2971. 
validity  of,  certain,  2973. 
void  as  to  third  persons,  when,  2957. 
where   recorded,   2959. 
in  different  places,  2962. 
of  common   carrier,   2961. 
where  property  in   transit,  2960. 
MORTGAGE  OF  REAL.   PROPERTY 

as   to   what   interest   may   be   mortgaged,    2947. 
defeasance   must   be   recorded,    2950. 
form  of  mortgage,   2948. 
may  be  recorded,  2952. 
MORTGAGE  OF   SEPARATE   ESTATE  OF  MARRIED  WOMAN 

acknowledgment   of.      See    tit.    Grant   by   Married   Woman. 
MORTGAGED   PROPERTY,     See   tit.  Homestead. 
MORTGAGEE 

assignment   of   to   thing   insured,   effect  of,   2541. 
MOTHER.     See  tit.  Parent  and  Child. 

apprenticeship,  consent  to.  See  tit.  Master  and  Apprentice. 
custody  of  child,  consent  of  necessary  to  transfer  of,  197. 
illegitimate  child 

consent   to  adoption   of,   224. 
entitled  to  custody  of,  200. 
succeeds  to  property  of,  1388. 
MOTORCYCLES 

franchise   to   construct  road   for,    524. 
MOTIVE     POAVER     OF     STREET     RAILROADS.      See    tit.    Pro- 
pelling Po«-er. 

1216 


INDEX. 

[References  are  to  sections.] 

MILTIPLICITV    OF   SUITS 

prevented   by   injunction,   ;i422. 
MUNICIPAL.   CONTRACTS.     See    tits.    Coiitract.s;    Miiiii<-l|>iil    Cor- 
porations. 
MUNICIPAL,   CORPORATION 

distinction    between    public    and    private    corporation.s,    284. 

injunction  to   prevent  legislative  act  of,  3423. 

lease   of   city   lot   of  for   more   than   ten   years,   void,   718. 

water   company,    contract   with,    548-552. 

will,   may  take  under,   when,   1275. 

MUNICIPAL   ORDINANCiE.      See   tit.   Teleerapb     and    Telephone 

Corporations. 
MURDERER 

of  decedent  cannot  .succeed,    1409. 
MUTUAL,   BENEFIT   AND   LIFE   ASSOCIATIONS 

assessments,    right   to   levy,    453. 

filing  articles   of   incorporation,   452a. 

formation  of,   452a. 

levying  of  assessment,   453. 

by-laws  which  may  be  made  regarding,   453. 

loaning  funds   and   purchasing  real   estate,   453. 

what  articles  must  show,  452a. 
MUTUAL    BENEFIT    SOCIETY.      See    tit.    Relii^ioiis,    S«»clal,    an«1 

Benevolent    Corporations. 
MUTUAL   BUILDING   AND  LOAN    ASSOCIATION.      See    tit.    Land 

and    Building'  Corporation.s. 
MUTUALITY 

of  consent  in  contract,   1580. 

of  intent,   must  be  given   in   interpretation,   1635. 
MUTUAL   LIFE,  HEALTH,  AND  ACCIDENT  INSURANCE  COR- 
PORATIONS 

alteration   of  number  of  directors,   443. 

associations  and  secret  orders  not  insurance  corporations,  451. 

benevolent   or  fraternal  co-operative   societies  are,   451. 

by-laws   may  prescribe  limitation   of  stock  held,   445. 
fixed,    deficiencies    in,    439. 

commission  allowed,   441. 

commission   and   interest  allowed,   441. 

declaration  of  fixed  capital  stock  to  be  filed,  440. 

directors,   number   of,    how   altered,    443. 

dividends,    how   made,    456. 

filing  of  declaration  of  fixed  capital  stock,   440. 

guarantee   fund   of,   437. 

guaranty  notes  and   interest,   441. 

■"•"  1217 


INDEX. 
[References  are  to  sections.] 

MUTUAI^  LIFE,  ETC.,  INSURANCE  CORPORATION  (continued), 
insured  entitled   to  vote,   wlien,   442. 
interest  allowed,   441. 

investment  of  capital   stock,   421,   421[a],   444. 
issued  within   the  state,  450. 

penalty  for  failure   to  comply  with   statute,   450. 

proof  of  death  within  a  year,   450. 
limitations  as  to  holding'  of  stock,   etc.,  445. 
premiums 

agreements   in  policies  as   to,   446. 

how  payable,  446. 
subscription   may   be   rejected,   437. 
to   furnish  data  to   insurance   commissioner,   447. 

retaliatory  clause,   449. 
vote,   insured  entitled  to,    when,   442. 
NAME 

certificate   of,   of  partnership,   2469. 
change   of,   conveyance   made,    how,    1096. 
child  adopted,  taken  by,  228. 
error  in,   of  corporation,   357. 
fictitious,  of  partnership,  2466-2471. 
of  corporation  to  be  stated  in  amended  article.'*,  289. 
of  partnership,  as  notice  of  dissolution,   2454. 
partnership    under   fictitious,    2466-2471. 
NAVIGATION 

rules   of.      See   tit.   Rules  of  Navlg-ation. 
NECKSS,\RIES.      See    tits.    Hu.sband    and    \Vlfe;     lufant;     Neee.s- 

saries  for   Infants. 
husband's    liability    for,    174. 
infant,   contract  for  by,   not   disaflirmable,   36. 
lunatic's  liability  for,   38. 

parent  not  liable  for,  furnished  child,  when,  208. 
promise  by  child  to  pay  for  those  furnished  parent,  206. 
third   person  may  furnish   to  cliild,   when,   208. 
NECESSARIES   FOR   INFANT 

contract   for  by   infant,    cannot   disaffirm,    36. 
NEGLIGENCE.     See  tit.  Obligations  luiposed  by  Law, 
agent's  principal  liable  for,  when,  2338. 

apprenticeship  annulled   for.      See   tit.   Master  and   Aiipreiitiee. 
borrower  to  repair  injuries,   when  caused  l^y,   1889. 
carrier,   not  exonerated   from,   2175. 
degrees  of,    16,    17. 
depositary,   liability   of   for,    1S40. 
divorce  for  neglect.     See   tit.   Dlvort-e. 

1218 


INDEX. 
[References  are  to  sections.] 

NEGLIGENCE    (continued), 
employee,  liability  for,   1990. 

hirer  liable  to   repair  injuries  cau.sed  by,   1929. 
in   insurance,  as  to,  2629. 
insurer,  not  exonerated  by,   2629. 
liability   of  depositary  for,   1840. 
pilot's   shipmaster   liable   for,    2.'?81. 
raises   an   involuntary   trust,    when,    2221. 
shipmaster,  liability   for,    2383. 
wilful,   1714. 
\KGOTIABL,E  COA'TRACT,     See   tits.   t'onJriM-tN;    Vejiolinhle  In- 
struments. 
NEGOTIABLE   INSTRUMENT-^ 

absolute,   must  be  to  be  valid,   3088. 
at'eeptanee 

admissions   by,    3199. 

allonge,    3110. 

bill  of,  3194. 

by  refusal  to  return,   3195. 

by  separate  instrument,  3196. 

concealment    of   acceptance,    3198. 

for   honor,    3205-3207. 

does   not   excuse   notice,    3207. 

how   made  and   enforced,   3205,   3206. 

holder  entitled   to   on   face  of  bill,   when,   3194. 

how  made,   3193. 

of  bill,   3194. 

promise  to  accept  equivalent   to  acceptance,   when,   3197. 

qualified,  effect  of,   3195. 

sufficiency  of,  when,  with  another's  consent,  3195. 

what  is   admitted  by,    3199. 

what   sufficient   with   consent   of   holder,    3195. 
acceptance   of  payment   of   bill   for   honor,    3205. 

holder  bound   to,   when,  3204. 

how  enforced,   3206. 

how   made,    3205. 

notice    of    dishonor    not    e.xcused    tiy    acceptance    for    honor 
3207. 

when  may  be,   3203. 
allong-e,  3110. 
alternative    instrument,    3090. 

bank  notes,  3261. 

bearer,   instrument    pa.\al)l>>   to,   const  nui  idii,   :'.l(il. 

l>ills,  acceptance  of,   3193. 

1219 


INDEX. 

[References  are  to  sections.] 

NEGOTIABLE   INSTRUMENTS   (continued). 

attorney,   fees  and   costs  may   be  provided   for  in,   3088. 
bank  notes.      See   tit.   Dank  Notes, 

as   to,   3261. 
bill 

days  of  grace   on   note   allow^ed,   3181. 

deemed  a  note,  wlien,  3246. 

defined,   3171. 

in   parts   of  a  set,    3173. 

of  lading,   as   to,   generally,   2127. 

of  exchange.      See  -tit.   Bills  of  Kxohauge. 
as  to,   generally,   3171-3177. 

set,   to  be   in  a,   3174. 

must  be  in  a,  when,  3174. 
blank  indorser's   liability,  *  3125'. 
bonds.     See  tit.  Bonds. 

are  negotiable,   3095. 
cancelation   of  acceptance,   3198. 
carrier 

liability  for  loss  of,   2177. 

liability  toward,  2201. 
classes  of,  enumerated,   3095. 
collection   agent's   duties,   as    to,    2021. 
consideration,   effect  of  want   of,   3131. 
contents  of,  as  to,   3093. 

damages   for   dishonor.      See    tit.   "Dishonor   of." 
certificate  of  stock.      See  tit.  Certificate  of  Stock. 
certificates   of  deposit.      See  tit.   Certificates  of  Dei»o.«4it. 

as   to,    3261. 

Is  a,    3095. 
checks.     See  tit.  Cheeks. 

definition    of,    3254. 
consideration 

presumption    of,    3104. 
days  of  grace  are  not  allowed,   3181. 
definition   of,   3087. 

demand,  effect  of  want  of  on   iirini'ipal  debtor.   3130. 
different  clas.ses  of,  309.''i. 
flishouor  of 

additional    time   for  by    indor.see,    3150. 

after  indorser's  deatli,   3145. 

definition,  3141. 

effect  of  notice  of  dislionor,  3151. 

1220 


INDEX. 

[Keferences  are  to  sections.] 

NEGOTIABI.E   INSTRUMENTS   (continued). 
tlinhoiior  of   (continued). 

execution  or  prevention  of  notice,   3155. 
delay,  when  excused,   3158. 
waiver  of  presentment  and  notice,   3159. 
waiver  of  protest,   when  excused,   3155,   3156. 
form  of  notice,   3143. 
how  given  by  agent,   3149. 
how  served,  3144. 

given  in  ignorance   of  death,    valid   wlien,   3146. 
notice  of,   3142. 

by   whom   to   be   given,   3142. 
to  be  given,  when,  3147. 
v^^hen  to  be  mailed,   3148. 
date 

any  may  be  inserted,  3094. 
may   be   inserted   by  maker,   3094. 
nominal,   as   to,    3094. 
not  essential,  3091. 
days  of  grace.     See   tit.   Days  of  Grace. 
death  of  maker  on  nominal  date,  effect  of,  3094. 
destruction   of,   effect  of  by  indorser,   3115. 
dishonor 

of  bill  payable  after  sight,   presumption  of,   wlicn,   3133. 
of  foreign  bill,  damages  for,  a.s  to,  3234-3238. 
what  is,   3141. 
drawee,   in  ca.se  of  need,   3172. 
drawer,   rights   and   obligations  of,   3177. 
effect  of   want   of  demand  on  principal   debtor,    3130. 
excuse  of  presentment  and  notice  in  bill.     See  tits.  BUIm;  For- 

elg^n  Bills. 
extinction   of.      See   tit.   BxtlncUoii   of  Ohll{?a41oii.>4. 
by  payment,   3164. 
when  extinguished,   3164. 
■fictitious   payee,   3103. 

foreign  bills.      See  tit.'^.  Hills;  Foreign  HIIIn. 
guaranty 

as   to  collectibility   of,    2800-2802. 
original,   what   is,   2794. 
incapacity   of  maker  at   time   of  iioniinal   (l;ilc,   clTi-ct    of,    3094. 
indorse.      See   tit.    indorsenieiii. 

as  to  agreement   of,    3112. 
ludorttee 

in   due   course,   who  i.s,   3122. 
rights  of,   3124. 

1221 


INDEX. 
[References  are  to  sections.] 

NEGOTIABLE   INSTRUMENTS   (continued). 
indorsee    (continued). 

of  check,   after   maturity,    3255. 

privy  to  contract,   3120. 

rights  of  tliose  of  guarantor,   ."ilL'O. 
indorsement.      See    tit.    Indor-scment. 

as   to,  3108. 
indorser 

destruction    by,    3115. 

implied  warranty  by,  3116. 

liability  of,   generally,   3116. 

liability  of  payee,   when,   3117. 
inland  bill,   definition  of,   3238. 

interest  to  be  on  amount  of  protested  bill,   3236. 
kinds  of,  enumerated,   3095. 

maturity 

apparent,    as    to,    3132. 

of  bill  payable  at  sight,   3134. 
of  note,  3135,   3136. 
may  be  an  alternative,   3090. 
may  contain   a  pledge,   etc.,    3092. 
money,   payment   in   must  be  provided   for,   3088. 
inust  be  for  unconditional  payment  of  money,   3088. 
must  be   payable  in   money,   3088. 
must  contain,  what,   3093. 
must  not  contain  any  contract,   3093. 
nominal   date   of,    3094. 
note 

applicability   of  code   jirovisions   to,    3247. 
definition  of,   3244. 
notice 

delay   in   presenting,   3248. 
effect  of  giving,   3151. 
notice    excused,    when,    3155,    3156,    3220. 
as   to   generally,  3155,   3156,   3220. 
given  in  ignorance  of  death  of  indorser,  3146. 
how   served,   3144. 

after  death  of  indorser,  3145. 
inures  to  benefit  of  others,  3151. 
not   excused   by  acceptance   for   honor,   3207. 
of   di.shonor  of 

additional  time  for,   31. 'lO. 
by  agent,    3149. 
by   subagent,    3149. 

1222 


INDEX. 

[References  are  to  sections.] 

NEGOTIABLE   INSTRUMENTS   (cuntinuetl ). 
uotioe  excusiMl,  >vheii .  (continued  ). 

of  dishouor  of   (continued). 
delay   excused,    when,    3150. 

served,    how,    3144. 

time  of  mailing-,  3148. 

time  of  serving-,   3147. 

waived,   how,   3155. 

waiver  of,  as  to,  3159. 

who  may  give,  3142. 
how  construed,   3155. 
parties  may  waive  provisions  of  code,  3268. 
partner,   liquidating-  firm,   powers  as   to,   2461. 
parties,   waiver  of  code  provision  by,  3268. 

to  order,  how  construed,   3101. 

where  bill  is,  3175. 
payee 

fictitious,   3103. 

must  be  ascertainal)le,  3089. 

who   is,    3089. 
payment 

extinguislies  obligation,   31 04. 

for  honor,  3203. 

declaration  of,   3233. 

instrument  to  be  surrendered,  exception,   3137. 

of  part  of  bill  in  sets,  3173. 

place   of,    not  specified,   3100. 

surrender  of  instrument  may  be   made  condition  of,   31 : 

time  of,  not  specified,  3099. 

time  or  place   of,   designation  not  necessary,    3091. 

to  excuse  or  order,  how  construed,  3101. 
place  of  payment,  3099. 

not   specified,    3100. 
pledgee  of 

as  to  collateral,   3092. 

of  collateral,    may  be   contained   in,    3092. 
presentation  for  payment,   3130,   3131. 

apparent  maturity,   3132. 

of  bill   payable  at  sight,   3133. 
of  note,   3135. 

dishonor  of  bill,   presumptive,   3133. 

liow  made,   3131. 

indorsement  after  maturity,  demand  of  payment,  3135. 
after  sight  or  demand,  3136. 

1223 


INDEX. 
[References  are  to  sections.] 

NEGOTIABLE   INSTRUMF:NTS    (continued). 
preseutatioii    for  payment    (continued).  • 

surrender  of  instrument  as  condition  of  payment,   3137. 

maturity  apparent,    3132. 

maturity  of  bill  payable  at  sigrht,   3134. 
presentment   of  bill   for  acceptance,   31 80. 

how  made,   3186. 

to  joint  drawer.s,  3187. 

when  must  be  made,   3189. 

when   to  be   made   to  drawee   in   case   of   need,   3188. 
presentment  of  bill   for   payment.      See   tit.   BIIIh. 

of  bill  payable  at  a  particular  company's,   3212. 

of  delay  In,   in  certain  cases,  3213. 
in  other  cases,   3214. 

when  not  accepted,   where  to  be  made,   3211. 

presumptive  dishonor   of  bill  payable  after  sight,   3133. 
promissory  notes.      See   tit.   Promissory    Note. 

definition   of,    3244. 
prote.st 

bill,   form   necessary,   3225. 

by  whom  to  be   made,   3226. 

how   made,    3227. 

notice  to  be   given,  how,   3231. 

time  of  making-,  3229. 

waiver  of,   3159,  3232. 

when  excused,   3230. 

where  made,    3228. 
surrender  of   instrument  a  condition    of   payment,    3137. 
time  of  payment,   3099. 
to   what  title  is  api)licable,   3086. 
unconditional,    instrument   must   be,    3088. 
unindorsed   note,    when   negotiable,   3102. 
waiver  of  code  provisions,   3268. 
w^areliouse   receipt,  is,    when,    1858f. 
what  instrument  must  contain,  3093. 
NEGROES  OR  MULATTOES 

marriage   with   whites   void.      See    tit.    Marriage. 

as  to  generally,  60. 
NEUTER   GENDER 

included   in   masculine,    14. 
NEUTRAL    PAPERS 

in   marine    insurance,    implied    warranty    of,    2688. 
NEWSPAPER  PUBLICATIONS.      See  tit.    Privileged   Piiblieatlon 
NIECES.      See   tit.   Nephews. 

1224 


INDEX. 
[References  are  to  sections.] 

AOMIN  A  I,  I).\M\(JK.S.     See  tit.   UaiiisiKcs. 
>OX-]VKOOTIAHliK    IXSTRUMKXT 

transferability,  1459. 
XOX-PROFIT   CO-OPKR ATIVIO,   KTC,    ASSOCIATIONS.      See    tit. 

Co-Operadve     \K'rit*iiHiiral,    I'Mf.,    AMsociationM. 
NON-PROFIT    CO-OPIORATIVK    CORPORATIO \S.      See    tit.    Co- 
operative  Corporal  ions. 
NON-RKSlDK\T 

adoption  proceedings   by,   224,   226. 

alien   inheriting'  claim  of  to  be  made,  wlien,   672. 

assig'nment   for   creditors.      See   tit.   AsNi|?nnient    for   Itenefil    of 

Creditors. 
transfer  of  stock  by.      See  tit.   Stock,  Trau.sfer  of. 
as  to,  g-enerally,  326. 
"NORTH."      See    tit.    Deeds. 
NOTARY    PURLIC 

acknowledgment  may  be  taken   by,   1181,   1182. 
in  the  state,  1181. 
out  of  the  state,   1182. 
out  of  the  United  States,  1183. 
bill  of  exchange,  payable  at  office  of,   wlien,   3176. 
presented  by,  when,   3226. 
presented  to,  when,   3188. 
making  protest,  must  g'lve  notice,  how,  3229. 
offer  of  performance  to,   1487. 
protest  by,   how  made,   3226. 
NOTE.     See  tit.   Nesotiable  Inslrunteut. 
NOTICE.      See   tits.   Actual   Notice;   Const  met  ivc    \o(lcc. 
abandonment   of  ship   to  insurer,   273(1. 
abatement   of  nuisance   for,   3.503. 

action,  not  necessary  before  but  actual,  what   is.    is. 
actual  or  constructive,   18. 
adverse  claim,   to  deposit,   1825. 
agent  to,  is  notice  to  principal,  when,  2332. 
appropriation   of  water,   as   to,    1415,   1416. 
assessment,   of  stock,   335-341. 

by    carrier    where    freight    not    delivered.      See    tit.    Carrier    of 
Property. 
as  to,   2120. 
carrier,   necessar.\-    to   in   stoppage   in    transitu,    3079. 
change  of  name,  as  to,  and  sufficiency  of,   2454. 
change   of   place    of   business   by   corporation,   notice   on.    32Ia. 
consolidation,   of   mining  corporations,   as   to,    587a. 
constructive.      See   tit.   Constructive   Notice. 

1225 


INDEX. 
[References  are  to  sections.] 

NOTICE    (continued). 

delay  in,  waived  how,  2636. 

delinquent  co-owners  of   mining'  claim,    (o,    1426o. 

depositary,  must  be  given  by,  to  real  owner,  when,   1826,  MOTli. 

directors  and  stockholders  to   post,  320. 

dishonor  of.     See   tit.  Negotiable  Instrnment.s. 

duty   of   gratuitous   depositary,    termination   by,    1835. 

either  actual  or  constructive,  18. 

ejectment  without,   793. 

election   of  directors,    302. 

filing   of  inventory   of  wife's   property,   as   a,    160. 

form  of,  3143. 

freight,  of  arrival  to  be  given  to  consignee,   2120. 

of  storage  of,   to  be   given   to  consignee,   2121. 
hirer 

of  personal  projierty,   repair  by  after,   1957. 

of  real  property,  repair  by  after,   1942. 
hiring,   may  be  terminated  by,   1946. 
innkeeper  exempted  from,  how.     See  tit.  Innkeener. 
inquiry,    what   sufficient   to   put   one   on.     See   tit.   Constructive 

Notice. 
in  quo  warranto  proceedings  against  corporation,   315. 
instruments,  purchaser  with,   effect,   1228. 
insurance  of  loss  under,  2633. 

defects  in   may  be  waived,   2635. 
lease,  change  of  term  of  by,  827. 

letter  of  credit,   to  writer  of  to  be  given,  when,   2866. 
life  insurance  policy,  to  be  given  on  transfer  of,   2765. 
not  necessary,  when,  793. 
of  appropriation   of  waters,   1415,   1416. 
of  assessment  of  stock.      See   tit.   Assessment   of  Stoclc. 
of  dishonor  of  negotiable   instrument,   by   whom   to   be   given, 

3142. 
of  hearing  of  petition  to  sell  homestead.   1247. 
of  meeting  of  board  of  directors.     See  tit.  Directors,  Board  of. 
of  meeting  of  corporation,   302. 

to  remove  directors,   310. 
of  partnership  dissolution,   2453,   2454,  2509. 
of   renunciation   of  profits,   effect  of,   2417. 
of  thing  found,   1865. 
pledge,  as  to  sale  of,  3002. 

principal,  notice  to  agent  is  notice  to.  when,  2332. 
purchaser   for  value    without,  rights   of,   856,   869. 

1226 


INDEX. 
[References  are  to  sections.! 

NOTICE    (continued). 

record  of  conveyance  as,   ]206. 

of  assignment   of   mortgage.      See   tit.    '♦loriKaue. 

of  instrument  as,  1213. 

of  intention  of  re-entry,   791. 

of   place   of  delivery,    1756. 
record  of  defectively-executed  instrument  iiiiii.iits  nciticf,  IL'07. 
record  of  sale,   to  depositor,   when,    18:',8. 

of  selection  of  alternatives,   1449. 
served   on   tenant   to   be   delivered    tci    lan(ll<)r<t,    llt|!i. 
stockholder.     See  tit.   Corporations, 
tenancy  at  will.     See  tit.  Tenancy  at  AVIIl. 
tenant  to  give   landlord,  when,   1949. 
terminates    employment,    when,    1996,    1997. 
to  deliiKiuent  co-owner,   ]426o. 
to   tenant  at  will,   to  quit,  790. 
trustee   by,   of  adverse   interests,   22.3:!. 

unrecorded  instrument,  not  notice  to  public  but  void  between 
parties,   1217. 
NOTICE   OF   liOSS.      See    tits.     Fire     Insurance;     ln.Hiiranoe;     Mfe 

and  Health   Insurance;   Marine   Insurance. 
NOTICE  TO   QTIT.      See    tit.   Ejectment. 

as   to,   1946. 
NOVATION 

a  contract,    1532. 
as  to  what  is,   1530. 
definition  of,   1530. 
is  a  contract,    1532. 
modes  of,   1531. 
rescission   of,  1533. 
NUISANCE 
abatement 

action  not  precluded  by,  3484. 

does  not  preclude  action  for  damages  for.   3484. 

not    to    affect    right    to    damages,    3  4.S4. 

of   private,    notice,    3501. 
when  allowed,   3502. 

of  public,   3491-3494. 
by  whom,   3494. 
how,    3495. 
action  for  public   nuisance,    3494. 
definition  of,  3479. 
indictment  for  a,   3491,   3492. 
information  for  a,   3491,  3492. 
lapse   of  time   does   not '  legalize   jniblic   nuisance,   3490. 

1227 


INDEX. 

rReferences  are  to  spftions.] 

NUISANCE    (continuerl). 
notice 

to  abate,   3503. 
private 

abatement   of,    when   allowed,    3502. 
notice   required,   when,   3503. 

action,    to    abate    public,    3494. 

definition  of,   3484. 

remedies   for,    3501. 

roots  projecting  into  soil,   834. 

what  is,  3481. 
public 

abated    liow,    3495. 

action   for.   3494. 

definition  of,   3480,   3493. 

liow  abated;  3495. 

how   regulated,    3492. 

lapse  of  time  does  not  legalize,   3490. 

private  action   for,    3493. 

regulated  how,   3492. 

remedies  against,   3491,    3493. 

time  does   not  legalize,   3490. 

what  is,  3480. 
remedies 

for   private   nuisance,    3501. 

for  public   nuisance,   3493. 
roots  projecting  Into  soil,  834. 
successive  owners   liable   for,    3483. 
time   of  existence   does   not   legalize   public,    3490. 
what  not  deemed  a  nuisance,   3482. 
MJNCUPATIVE  WILL,.     See   tit.  "Wills. 
how   executed,    1288. 
probate   of,    1291. 
proof  of,  1290. 

requisite.s   to   validity   of,    12<S9. 
OATH 

definition   of,    14. 
of  homestead  appraisers,    1250. 

of   person   solemnizing  marriage,    administering   by,    72. 
person    taking   acknowledgment,    administering   by,    1201. 
OBLIGATIOXS.      See    tits.    Contracts;   Extinction    of   Ohlisations. 
accord  of.      See  tit.  Accord  and   Satisfaction. 
act  of  God,  effect  of  on.     See  tit.  Act  of  God. 
alteration  of,  effect.     See  tit.  Contracts. 

1228 


INDEX, 
r References  are  to  seotioiip.l 

OBLIGATIONS    (continued). 
alternatives 

as   to.    1448. 

indivisibility  of,   1450. 

nullity  of  one  or  more,    1451. 

right  of  selection,   1448. 
lost  how,  1449. 
application  of  payment.     See  tit.  Application  of  Payment. 
apportionment  of  covenants,  1467. 
arise 

by  operation  of  law,   when,   1428. 

how,    1428. 
assumption   of,   acceptance   of  Jjeneflts   implies,    1589. 
oonditional 

as   to,  generally,   1434. 

conditions   concurrent,    1437. 

conditions   precedent,   1436. 

performance    of    condition.'^    wlien    essential,    1439. 
what  are,   14  38. 

kinds  of,   1435. 

performance    of    concurrent   conditions,    1437,    1438. 

conditions   involving  forfeiture,   how   construed,    1442. 

covenants.      See  tit.   Covenant.s  Running  tvith  Land. 

created  how,   1428. 

definition   of,   1427. 

enforcement   of,   1428. 

how   incurred   and   enforced,   1428. 

impossible   or   unlawful   conditions   void,    1441. 

interpretation   of,   general   rules   as   to,    1429. 

joint  and   several,   1430. 
apportionment   of,   1467. 

contribution   between  joint   parties,   1432. 
when  joint,  1431. 

when  joint,  1431. 

apportionment  of,    1467. 

exting^uiMhment    of 

by  offer  of  performance,   when,   1485-1492. 

by  performance,   1473-1479. 
forfeiture,  how  construed,   1442. 
imposed  by  law.     See  tit.   ObliK-ationH  InipoNed  l»>    iiaw. 

as   to,   generally,   1708. 
infant  cannot  disaffirm,  when,   37. 
interest,  stopped  by  offer  to  perform,  1503. 

1229 


INDEX. 
[References  are  to  sections.] 

OBLIGATIONS    (continued). 
joint  and  several 

effect  of  release   of  one,    1543. 

joint,   when,   1431. 

presumption  in  favor  of,   1431. 

several,   when,   1431. 
law.      See   tit.  Obligation   Imposed  by   La^v. 

imposes   what,    1708-1717. 

operation   of,   created  and   enforced   by,   1428. 
mistake.      See   tit.  Mistalve. 
non-negotiable   instrument   may   be    transferred,    1459. 

covenants   running  with  land,   1461. 
for  benefit  of  property,  1462. 
to  pay   rent,    1463. 
what  are  not,   1466. 

what   constitutes   lease    running   with    land,    1464. 
novation.     See  tit.   IVovation. 
offer  of  performance   and    effect    of,    1485. 
payment.      See   tit.   Payment. 

pecuniary  extinguished  by   tender,   wlien,   1500. 
performance    of.      See    tit.    Kxtinction    of   Obligations   by    Per- 
formance. 
property  as  to,   1458. 

receipt,   right   to   require   on   performance    of,    1511. 
refusal    to   accept   performance.      See    tit.     Elxtingulshment     of 

Obligation   by   Performance. 
release    extinguishes,    1541. 
satisfaction,    definition    of,    1523. 

part   performance   in,   effect   of,    1524. 
statute  of  frauds  in  relation   to,  1624. 
substitution  of  new.      See  tit.   Novation. 

as   to  effect  of,   1531. 
substitution  of  parties,   1531. 
transfer 

as   to,   generally,   1458. 

covenants   running  witli   land.      See   tit.   Covenants  Running 
tvlth    Land. 
as  to  generally,   1468. 

of  burden   of,   1457. 

of   non-negotiable   instrument,    1459. 

of  obligations,   rights   of,    1457,   1458. 

of  rights  arising  out  of,   1458. 
offer  of  performance,   waiver  of  obligations  of,    1501. 
unlawful   conditions,    effect   of,    1441. 

1230 


ZJ..J*'  INDEX. 

<■  [References  are  to  sections.] 

OBLIGATIONS    (continued). 

when  performance  excused,   1440. 

waiver  of  oblig:ations  on   offer  of  performance,    l.'iOl. 
OBLIGATIONS  ARISING  FROi^I  IVVRTK^l'IiAR  TRA  \S.\CTIO\S 

agency.     See  tit.  ARem-y. 

carriage.     See  tit.  farriaKc. 

deposit.      See   tit.   Deposit.  * 

exchange.      See  tit.   K.\<'haiiKe. 

guaranty.      See  tit.  Giiarant.t. 

hiring.     See  tit.   Hirinsr. 

indemnity.      See   tit.   Indemnity. 

insurance.      See   tit.   ln.suranee. 

Hen.     See  tit.   I.ien. 

loan.      See    tit.    Loan. 

negotiable   instruments.      See  tit.   Negotiable   InNtriimeuts. 

partnership.     See   tit.  I'artncr.sliip. 

sales.     See  tit.  Sales. 

service.      See  tit.  Serviee. 

trust.      See  tit.   Trust. 
OBLIGATIONS   IMPOSED  BV   LAW 

deceit   on    the  public,   1711. 

deceit,  what  is,   1710. 

fraudulent  deceit,   1709. 

other  obligations,   1715. 

responsibility   for  wiltul  act.s,   negligence,   etc.,    1714. 

restoration  of  thing  wrongly  acquired,   1712. 
demand,  necessary  when,   1713. 

to  abstain   from   injury,   170S. 
t)t'CUPANCY 

as  to  title  by,   1000,   1006. 
OFFER 

absolute   terms   necessary,   l.'iS'). 

acceptance  of,   how  made,   1.582. 

•of  guaranty.   279.'). 

rcvsked    how,    1587. 
when,   1586. 

thing  to  be  kept  separate,   1497. 

what  deemed  an,   1584. 
OFFER   OF    PERFORMANCE.      See    tit.    ExtinKiilMhment    of   Olt- 

lieation. 
OFFICER 

lien   of.   3057. 

of   corporations.       See    tits.    Corporate    Powers;    Corporations. 

12.^1 


INDEX. 

[References  are  to  sections.] 

OFFlfEK.S 

joint  authority  of,  constructive,   12. 
OLOGRAPHIC  AVILL.      See   tits.   Holographic   Will;  AVills. 

definition   of,   1277. 
OMISSION 

in   wills,    1340. 
OPERA-HOISE.      See   tit.   Theatre. 

damages   for   wrongfully   excludins    from,    .53. 
OPINIOIV  EVIDENCE.      See   tit.   AVills. 
OPPRESSION 

avoids   contract,    1567-1569. 

exemplary   damages   for,    3294. 
interest  allowed  as  damages  in  case  of,  3288. 
OPTION 

as   to  delivery,  notice   to  be   given   of  election,    175G. 

as  to  place  of  performance,  1489. 

how  waived,   1756. 

Injunction   to  prevent  exercise  of,  not  granted,   3423. 

of  beneficiary,    in  breach   of   trust,   2237. 

of  owner,   on  confusion  of  goods,   to  take  value  of  thing,   lOJ 

of  payee,   as  to  payment,   3090. 

of  selection  between   alternatives,    1448-1476. 

waived,    how,    1756. 
OPTIONAL   CONTRACTS.      See    tit.    Contracts. 
ORAL  OBLIGATIONS.      See   tit.   Statute  of  Frauds. 
ORAL  TRANSFER.     See  tit.  Transfer. 
ORDER 

directing  sale  of  Iiomestead,    wlien   made,    1254. 

permitting   sale    of   liomestead    of   insane   person,    1269c. 

respecting-  custody  and  support  of  children   in  divorce,   138. 
ORPHAN 

adoption  of.      See  tit.   Adoption. 

apprenticing.      See    tit.    Master   and    Apprentice. 
ORPHAN   ASYLUM 

committing  children   to,   607g. 

establishment  of  by  corporation,   595. 
OSTENSIBLE  AGENCY.     See  tit.  Agency. 

as  to,  2300. 
OSTENSIBLE   AUTHORITY.      See   tit.    .\sent. 
OTHER  LIENS 

of  banker.      See   tit.    Baulter. 
as  to,   3054. 

of   factor.      See   lit.   Factor. 
as  to,   3053. 

1232 


INDEX. 
[References  are  to  sections.] 

OTHER    I.IEN'S    (idiUinued ). 

of  judgment.     See   tit.  Jiidsrmeut. 

as  to,   3058. 
of  loggers,   3065. 

lien  ceases,   when,   3065. 

upon  what  lien  subsists,   3065.  « 

of  mechanic.      See  tit.   MeehanU-'s  Uen. 

as   to,   3059. 
of  officer.     See  tit.  Ottioer. 

as  to,   3057. 
of  persons   in   charge  of  stallion,   3062. 

action  to  enforce  lien,  3064. 

claimant  must  file  verified  claim,   3063. 
of  purchaser  of  real  property,   3050. 
of  seamen.      See   tit.   Seamen. 

as  to,   30*6. 
of  seller  of  personal  property.     See  tit.   Per.«»oiial   Propert.v. 

as  to,   3049. 
of   seller  of  real   pniperty.      See   tit.    Veiulor'.s    Men. 
•  as   to,    3046. 

contract    transferred,    lien    waived,    when,    3047. 

extent    of    lien,    3048. 

transfer  of  contract  waives  lien,   when,   304  7. 
of  workingmen,   etc.,   3061. 

on  personal   property  for  alteration  and   repairs,   3052. 
on  personal  property  for  services  performed,   3051. 
on   ships.      See   tit.    .Ships. 

as  to,    3060. 
on   threshing   machine,    etc.,    3061. 
OVKR-IXSl'R.VNCE.      See   tit.    InMiirnuee. 
<»AV>'ER.      See    tit.    ShipM    an«l    Sbippine. 
OAVXERSHIP.      See    tit.    ProdiietN   of   the    >llnd. 
accumulations.      See    tit.    .\eoiinniIatl«>u.s. 
alien    inheriting   must    claim    within    what    time,    672. 
as   to,   980. 

ns  to  who  is  owner,  669. 
conditions,  707. 

precedent    or    subsequent.      See    tits.    CoinlltloiiM    PreeeilenI; 
ContlUionw    Sub.>4e(iuent. 
conditions  fixing  time  of  enjoyment,   707. 
future    interest,    when    defeated,    739. 

how  defeated,   740. 

takes  effect  on  future  liappcniiigs,  when,  742. 

when  not  defeated,  741. 

1233 


—^  INDEX. 

[References  are  to  sections.]  > 

OWNERSHIP    (continued), 
joint  interest,  what  is,   68;!. 
modification    of   ownership,    678. 

absolute    or    qualified,    678. 

absolute  when,   679. 
of  several'persons,    682. 

what  is,    684. 
property  of  the  state,   670. 
qualified   ownership,  680. 

rights   of   owners.      See   tit.   Rights   of   Owuers. 
several   ownership,   what   is,    681. 
suspension   of   restricted,   770. 
termination   of,   739,   749. 
who   may  own  property,   671. 
O^VNERSHIP    IN    SEVERALTY 
absolute,   what   is,    679. 
qualified,    what    is,    680. 
what,   is,  generally,  6S1. 
PARENTS    AND    CHILD 

abandonment   of   child   by    parent,    forfeiture    of   guardianship 

by,    246. 
abduction   of   child,    49. 

abuse  of  child  by   parent,   remedy  for,   203. 
action   for  exclusive   control  of  children,    199. 
adoption.      See    tit.    Adoption. 

adult  children,   compensation   for   support   of,   210. 
allowance   to    parent    out    of   child's   property   for   its   mainte- 
nance,   201. 
apprenticeship   of   child.      See    tit.    Master  and  Apprentice. 
authority    of   parent    over    child    ceases,    when,    204. 
child  born  before   wedlock   becomes   legitimate,   when,   215. 
child's    property,    parent    cannot    control,    202. 
children,   action   for  exclusive   control   of,    199. 

born    after    dissolution    of    marriage,    194. 

support  and  maintenance  of.  See  tit.  Divorce. 
compensation  fol-  support  of  adult  children,  210. 
custody   of  child 

exclusive,    when    husband    or   wife    may   claim,    214. 

in    general,    194. 

of   annulled    marriage,    84. 

of  illegitimate   child,   200. 

of  legitimate  child,   197. 

relinquishment    of,    211. 

when   parents   are   living   apart,    198. 

wife  may  obtain,   >yhen,   214. 

1234 


INDEX. 

[References  are  to  sections."! 

PARENT  AND  CHILD    (continued). 

decree   in  action   for   exclusive   control   of  children,   199. 
domicile   of  child,   determined   by   parent,   213. 
education    of   children,    oblig-ations    of   parents, '  1 96. 
emancipation   of   child,    211. 

guardian    for    minor    children,    appointment,    effect    of,    204. 
guardianship.      See    tit.    Guardian    and   Ward. 

husband    not    bound    to    support    cliildren    of    wife    1)>-    former 
marriage,    209. 

legitimacy   of  child 

born    after    dissolution    of    marriage,    194. 

born   in   wedlock,   193. 

born  of  void   or  dissolved   marriage,    194. 

marriage    works,    when,    215. 

who   may  dispute,    195. 
legitimatized,    child    born    out    of    wedlock    is,    by    marriage    of 

parents,   215. 
liability   for  necessaries   supplied    to   child,    207. 

when    not   liable,    208. 
marriage    by    infant,    terminates   parental    autliority,    204. 
neces.saries 

furnished    by    parent,    child's    agreement    to    pay,    206. 

liability  for  supplied  to  child,   207. 

parent   not   liable    for,    when,    208. 

third   person   may   furnish   child   with,   when,   207. 
necessaries,   liability   for,    supplied   to   child,    207. 
parent  cannot  control  property   of  child,    202. 
parental    abuse,    remedies    for,    203. 
parental   authority,   ceases   when,    204. 

posthumous    children.      See    tit.    Po»<hunioii.H    Children. 
reciprocal  duties   of  parent   and   children    in    maintaining  each 

other,   206. 
reciprocal    duty    to    support,    206. 

relinquishment    of   custody    and    services    of   child,    211. 
remedy   where   parent   dies   without   providing   for   support    of 

child,    205. 
residence   of   minor   child,    jiarent    may   determine,    213. 
services  of  child,  relinquishment  of,   211. 
stepfather,  rights   and   lial)ilities   as   to,    209. 
support   furnished   child,    when    jiarent    not    liaI)lo,    208. 

Miipport    of   child 

enforced,    when,    203. 
obligations  for,    196." 

1235 


INDEX. 

fRefprPiices  are  to  seotions.] 

PARENT   AND  CHILD,  (continued  ). 
support,    obligations    of    parents,    196. 

parent  not   liable   for  of  children,   when,   208. 
where  parent  dies  without  providing  for,  20.5. 
wages  of  minor  child,   who  entitled   to,  212. 
ward,    marriage    of,    effect,    20. 

wife,    may   obtain   custody   of   minor   children,   when,    214. 
PAROL   CONTRACT.      See   tit.    Statute   of  Frauds. 
PAROL,   EVIDENCE.      See   tit.   Evidence. 
PAROL,    OBLIGATION.      See    tit.    Statute   o£   Frauds. 
PART   PAYMENT.      See   tits.   Joint   Obligors;   Payment. 
PART    PERFORMANCE 

by  grantor,    acceptance   by    principal,    effect    of,    2822. 
effect    of,    1477. 

extinguishment  of  obligation  by,   1524. 
lien   not   extinguished   by,   when,    2912. 

makes  oral  contract  for  sale  of  land  valid,   when,    1741. 
offer  of,   effect,    1486. 

parties,  in  suit  for  duplicate  of  lost,  etc.,  certificate  of  stock, 
328. 
PARTIAL    INSAMJTY.      See    tit.    AVill.s. 
PARTITION 

of  easements,   807. 
PARTNERSHIP 

accounting  by   partners,   2412. 

application  of  partnership  property  to  payment  of  debts,  2405. 

as   to   what   constitutes,   2395. 

certificate   of  partnership,   executing  and   filing,    2468. 

new,    to  be   filed   on   change   of  partnership,    2469. 
change   of  membership,   filing  new  certificate,   2469. 
compensation   for   services    of   partner   not  allowed,    2413. 
debts   of,  application   of  property   to,    2405. 
duration  of  partnership,   2449. 
foreign  partnership,   style  of,   2467. 
formation    of   partnership,    2397. 
general    partnership 
as   to   what   is,   2424. 

authority    of    individual    partnei-,    2429. 
general   partner  may  sue  and  be  sued,   2492. 
in   what   business  partner   may  not  engage,   2436. 
partner's  acts  in   bad  faith,   ineffectual,  when,   2431. 
power   of   majority   of   partners,    2428. 

profits  of  individual  partner  belong  to  firm,  when,   2435. 
what   authority  partner   has   not,    2430. 

1236 


INDKX. 

r  Heferenccs  are  to  sections.! 

PARTNKRSHIP   (continued). 

g-ood   faith   to  be  observed  between  partners,   2411. 
in   what   bu.siness   partner  may   engage,   :;437. 
liability   of   partners   to    third   persons,    2442. 
for  each   other's   acts   as   agents,    2443. 
no  liability  unless   held   out  as  partner,    244.5. 
of  one   held   out   as   partner,    2444. 
liquidation 

power   of    partners   after   dissolution,    2458. 
power  of  partners  in  liquidation,  2461. 
what   partners   may   do   in    liquidation,    24  62. 
who  may  act  in  liquidation,  2459. 
who   may   not  act  in   lifiuidatioii,   24  CO. 
losses,   division   of  implied,   when,   2404. 
mining   partnership.      See    tit.    Mining  Partnership. 
mutual   liability   of   partners   to   account,   2412. 
mutual   obligation   of   partners,    2410. 
notice  of  change   of  name,   2454. 
notice    of    termination    of    partnershij),    2453. 
partial  dissolution,   2451. 

I)artner  entitled  to  dissolution,  when,  2452. 

partner  transacting  business  must  account  to  firm,  when,  2438. 
partners  trustees  for  each  other,  2410. 
profits  and  losses,  partners  share  in,  2403. 
property   of,   2401. 

partner   may   require   application    to   debts,    2405. 
partner's  interest  in,  2402. 
ship-owners  as   partners,   wlien,    2396. 
wliat    propertj'    is    by    presumption,    2406. 
special    partnership,    2477. 

acknowledgment  and  record,  2480. 
affidavit  as   to   sums   contributed,   2481. 
alteration   and    dissolution,    2509. 

dissolution  of  and  notice  required,  2509. 
name   of  special  partner  used,  when,   2510. 
new   special  partner  may   be   admitted,    how,   2508. 
special   partner  becomes  general,   when,   2507. 
certificate    to    be    published,    2483. 

affidavit   of   publication    to   be   filed,    2484. 
certified   statement,    2479. 

false    statements    in    acknowledgment,    2480. 
formation    of,    2477. 
liability  of  partners,   2500. 
of  special  partner,  2501. 

of  special  partner  for  unintentional  act,  2502. 
who  may  question  existence  of  special   partncrsliip.   2503. 
1237 


INDEX. 

[References  are  to  sections.] 

PARTNERSHIP   (continued). 

speoin]    partneriiihip    (continued), 
of  what  consists,   2478. 
partnership   completed,    when,    2482. 
powers,  rights  and  duties  of  partners,   2489-2491. 
business    to    be    done,    by    whom,    2489. 
interest    to    special   partner,    2494. 
preferential    transfer   void,    2496. 
profits   of,    2494. 
special    partner   may   advise,    2490. 

may  loan   money  to,    2491.  "^ 

position   in   case   of  insolvency,    2491. 
transfer   void   when    preferential,    2496. 
withdrawal    of    capital,    249.3. 
results  of,  2495. 
renewal    of,    2485. 
style  of  foreig-n  partnership,   2467. 
total   dissolution    of   partnership,    2450. 
use   of   fictitious    names,    2466. 
duties   of   those    using,    2466. 
what   is,    684. 

what   property   is   partnership   property   by   presumption,    2406. 
PARTXERSHIP  INTKRK.ST 

what   is,    684. 
PARTNERSHIP  PROPERTY.     See  tit.   PartnerKhip,  Property  of. 
PARTY    WALLS 

right  to  use   wall  as,  801. 
PASSENGERS.      See    tit.    Common    Carrler.s    of    Persons. 
damages   for   refusal    to   carry.      See   tit.   Damagres. 

as   to,   482. 
duty  of  carrier   to  accommodate   and   transport,    481. 
duty    of   carrier    towards,    generally,    2100-2104. 
ejection   for  refusal    to   pay   fare.      See    tit.    Ejection   for   Non- 
payment of  Fare. 
on   construction    trains,    483.  ^ 

on    freight   trains,    483. 
inside   room  for,   483. 
payment  of  fare.     See  tit.  Fare. 
power  of  shipmaster  over,  2038. 
printed  rules  and  regulations  governing,   484. 
refusal  to  pay  fare,  ejection,  487. 
ship,    power   of   master   over  passengers   on,    2038. 
tickets 

conditions    in    limiting    liability    of    carrier,    2176. 

1238 


INDEX. 
[References  are  to  sections.] 

PASSENGERS    (continued). 
tickets    (continued). 

grood  for  six  months,  490. 
how    issued,    490. 
to   be   provided   with   seats,   218;"). 
treatment   of  by  carrier  for  liire,  2J0o. 
PA.STITRK 

lien  for,    3051. 
rig-ht  to,   801,   802. 

use    of    homestead    as    for    neislibor's    stock,    effect.      See    til. 
Homestead. 
PATENT 

effect  of  recording'  without  acknowledgement,    1160. 
PAWN.      See    tit.    Pledge. 

PAYMEXT.      See    tit.    Extinction    of    Obligation. 
admissions    of   party,    1473. 
agent,   to,   effect   of,   2335. 
application    of,    1479. 
by   one   of  joint   creditors,    1475. 
by   one   of  several  joint   debtors,    1474. 
defined,    1478. 

direction   of   creditor   is,    when,    1476. 
effect   on   accessory   of   obligation   of   offer   of,    1504. 
for    honor 

how    made,    3205. 
when  made,  3203. 
indemnity   necessary   to   claim,    when,   2778. 
liquidating  debt  by,   of  less  than  due,  1524. 
negotiable    instrument.      See    tit.    NeKotIal>le    in.s(riinient. 
made   to  whom,   3089,   3164. 
payable  to  fictitious   person,   3103. 
obligation   how   extinguished  by   offer  of.      See   tit.    iOxtiuction 

of  Obliteration. 
of    rent.       See    tit.    Rents,    Issues    and    Profits. 
partial  payment,   effect  of,   1477. 
payee,   option   as    to   class   of,   3090. 

surrender   of   instrument,   when   a   condition    of,    3137. 
tender    and    deposit,    extinguish    obligation,    when,    1500. 

stops  running   of   interest,   1504. 
to   agents,   2335. 
what    is   payment,    1478. 

tender   is,   when.    See   tit.   Tender. 
PENAL,    DAHI.\GES.      See    tit.    Damages. 

1239 


INDEX. 

[References  are  to  sections.] 

l'Ka\.\L,TV 

carrier's    liabilit\-    for    wiiere    not    starting    on    sclTedule    time, 
2172. 

contract   witli    a,   specific    enforcement,    3390. 

cruelty  to  animals  and  children,  for.      See  tit.  Sooletj-  for  Pre- 
vention   of   Cruelty    to    Animals    and    Children. 
as    to,    607e. 

damages,    penal,    .j34  4-.j:J48. 

injunction,   3369. 

liquidated  damages  on,   1670-1671. 

not  to  be  specifically  enforced,   when,  3369. 

overcharging-  by  street  railway,   for,  501,   504. 

penal    damages.      See    tit.    Damages. 

public  places,  denying  admission  to,  53. 

recovery,   action  by  purchase   of  franchise   for,   390. 

specific    enforcement   of   contract   with,    3390. 

specific  relief,   enforcement   b\,   not   granted,   3369. 

street   railway,   for   toll-charging,    501,    505. 
ticket,    liability   for  not    furnishing,    505. 

surety  not  liable  beyond  amount   of,   2836. 

telegraph   and   telephone   property,    for   injuring,    538. 

tolls,   unauthorized,    for,    514. 

treble   rent   on   forcible   detention,    3345. 

trespass    on    wagon    road    corporati'on's    property,    520. 

warehousemen,   liable   for,  w^hen,   1858f. 
PENALTY  FOR  AA'^OIDING  TOLLS 

as   to,   generally,   519. 

for   trespass   on   wagon   road,   520. 
PKRFORMANCE 

application    of.      See    tit.   Application. 

condition    precedent.      See    tit.    Conditions    Precedent. 
wlien   necessary,  of,   1439. 

conditions    of   proposal,    acceptance    by,    1584. 

excused 

how,    1511. 

when,    1440,    1473. 
holiday,    falling   on,    effect,    11. 
in  mode  directed,  as  to  sufficiency,  1476. 
joint   creditors 

by   one,    1474. 

to   one,    1475. 
made   as   directors,    sufficient,    1476. 
liartial.      See   tit.   Partial    Performance. 
payment,    when    to   be    made,    1478. 

1240  I 


INDEX. 

TReff I'pnces  are  to  sections. 1 

PERFORMANCE    (continued). 

pledgee,   performance  on  demand,   3001. 

precedent   conditions.      See    tit.    fouilitions    Preoedont. 

prevented,  a.s   to  effect  of,   1512,   1515. 

refusal  of  acceptance  before  offer,   elTei't   of.    l.'il.'.. 

surety,    compelling'   by,    2846. 

time   for,    1657. 

in    i'n.sui'H  nee.      See   tit.   Iii.siiraiu't'. 
as    to,    2626. 
I'ERlliS   OF  THE   SEA.     See   tit.    Marine  lu-suraiu-e. 
PERISHABLE 

as    to,    2199. 

sale   of  deposits   that  are,    ISI'T. 
PERPETUAL,    IXTEREST 

what    is,    691. 
PERPETUITIES 

as   to,  715,   716. 
PERSON.      See    tit.    Evidence. 
PERSONAL.    OBLIG.VTIOX 

mortgage    not,    2928. 
PERSONAL,   PROPERTY 

accession   to,   as   to,    1025,    1031. 
acquisition,   different   modes   of,    1001. 
action,   thing  in,  is,  953,  954. 
agent's  authority  to  sell  includes  what,  2323. 
chattel  interest  is,  when,  765. 

defined,  953. 

transfer    and    survivorship    of,    954. 
definition    of,    663. 

dividends    made   payable    to   married    woman,    325. 
estate    at   will,    is,    765. 
estate   in,   as   to,   702.  ' 

gifts,   See  tit.   Gifts. 
good    will    is.      See    tit.    Good    Will. 
includes  what,    14. 
interest   in.      See    tit.    Proper* .v. 

as   to,    generally,    702. 

how  protected,   947. 
inventions  are,   980-985. 
kinds   of  personal   property,    953. 
law    governing,    !)4(>. 
letters,   personal,   are,   980,   985. 

1241 


INDEX. 
[Refei-enoes  are  to  sections.] 

PERSONAL   PROPERTY    (tontimied ). 
lien  of  one  who  makes,  alters,  etc.,  3052. 

of  vendor  of,   3051. 
limitation  of  actions  as  to.      See   tit.   Statute  of   Lilniitatiou.s. 

as   to,    1007. 
minor,    contract   of    respecting,    of    whicli    he    has    not    posses- 
sion, 33. 
occupancy  of  by  title,   1006. 
ownership  of.     See  tit.  Ownership. 
private   letters  and   writings,    to   whom  belong,   985. 
productions   of   the    mind   are,    !t80,    984. 
recovery   of.     See   tits.    Claim   and   Delivery;  Replevin. 
survivorship,   succession   to,    954. 
thing   in   action   is,    953,    954. 
title  deeds  are,   994. 
tort,   goods,   right  of  action,   954. 
transfer    of 

buyer   acquires  better   title    tlian    seller,    as   when,    1142. 
by    sale,    1136. 
mode  of,   1135. 
must  be  in   writing,   1135. 
trade-mark    is.      See    tit.    Trade-Mark. 
transfer  of   title   under  sale,    1140. 
what  is,  663. 

what  operate  as  transfer,  1136. 
writings,   private,   belong  to   whom,    980,    985. 
PERSOIVAL,    RELATIOXS 

protection  of,  49. 
PERSONAL.    SERVICE.      See    tits.    Agents;    Employer    and    Em- 
ployee;  Master   and    Servant. 
must  be  performed  by  joint  obligors,    1475. 
PERSON   OF   UNSOUND    MIND.      See   tit.    Contract   by   Per.son   of 
Unsound    Mind. 
contract  by   persons   without   understanding,    39-42. 
powers   of   persons   whose   incapacity   has   been   adjudged. 
PEAV 

is  a  servitude,   801,   802. 
PHRASE 

construction   of,    13. 
PILOT.      See   tit.    Ships   and    Shipping. 

PIER.      See    tit    Bridges,   Ferry,    >\harf,   Chnle   and    Pier    Corpor- 
ations. 
PIONEER    SOCIETY 

land    tliat   may   be   held   by,    596. 

1242 


INDEX. 

[References  are  to  sertinn.s.] 

PLACE    OF    BUSINESS 

change    of   by  corporation,    321a. 
procedure   on   change   of   location,    321a. 
resolution  of  change,   321a. 
PLACER   CLAIMS.      See    tit.    Mines. 
location    of,    1426c. 
record  of  location  of,   1 426(1. 
PLAT.      See    tits.    In.<s(rnment   in    Wiitinu;    Map. 
PLEADING  WD  PRACTICE.     Sec   tit.   Libel. 
PLEDGE 

apparent  owner  b>-   one  who  is,   2991. 

contract   is   to  be   deemed  a  pledge,   wlu-n,    2087. 

definition    of,    2986.    * 

delivery   e.ssential    to   validity,    2988. 

debtor,   misrepre.sentation   as  to   value  of  thing  ple'dgcd,   2999. 

demand,   waiver  of,   3004. 

factor,   may  not,   2368. 

foreclosure    of   right    to    redeem,    3011. 

further   pledge,    2999. 

gratuitous   pledge   holder,    2998. 

as   to   liability,   generally,    2998. 

exonerated,    how,    2995. 
in   case  of  thing  pledged,   effect  of,   2990. 
increase  of  thing  pledged,   ownership  of,   2989. 
lien,   acceptance    of   possession  of   thing,    2991. 
lienor  may  pledge   property,   to  what  extent,   2990. 
misrepresentation   by   debtor   of  value   of   thing   pledged,   2999. 
must  enforce  rights  of  pledgee,  2996. 

obligation  of  for  reward,  2997. 
negotiable    instrument,    pledge-holder    not    exonerated,    wlien, 

2995. 
notice   of  sale   to  pledgeor,    3002. 

waiver    of   notice,    3003. 
obligation   of  pledgee   and   pledge-holder  for   rewai-d.   2997. 
owner    cannot    defeat    pledge,    when,    2991. 
pledsre-holder 

as   to   who   is,   2993. 

gratuitous,    2998. 

must  enforce   pledgee's  right,    when,   2996,  2997. 

obligations   of,   2995. 
pledge-lendei-,   what  is,   2992. 

when    may    williilraw    projterty,    2994. 
pledgee 

may    forpolosi\    i-i;;lil    of    rcileniiil  ion,    ."Oil. 

1243 


INDEX. 
[References  are  to  sections.] 

PLEDGES   (continued). 
pleilifee    (continued). 

may    purchase,    when,    .'JO  10. 

may  sell,  when,  3000. 

must  demand  performance,  when,   3001. 

obligations    of,    for  reward,    2997. 

sale    of   securities   by,    3006. 
real    owner,    pledge    by    apparent    owner    cannot    be    defeated 

by,    2991. 
sale 

auction  at,  SOO.t. 

before  claim  is  due,   3009. 

demand,   prior,  necessary,   3001. 

must   be  by  auction,    3005. 

notice-  of  must  be  given  to  pledgeor,   3002. 

of   securities   by   pledgee,    3006. 

on   demand  of  pledgeor,  3007. 

pledgee   may  purchase,    3010. 

may    retain    proceeds,    when,    3009. 

surplus    payable    to    pledgeor,    3008. 

waiver   of   demand,    3004. 
of   notice,    3003. 

when  pledgee  may  have,   3000. 
surplus   to  be  paid   to  pledgeor,   3008. 
transfer  is,   when,   and   when  a  mortgage,   2924. 

^vaiver 

of   demand,    3004. 
of   notice   of  sale,    3003. 
when   pledgee   may   sell,    3000. 

when  pledgee   must  demand   performance,   3001. 
PLEDGEE.      See    tit.    Pledse. 
PLURAL, 

includes    singular,    14. 
POLICE 

members    and    officers    of    society    for    prevention    of    cruelty, 

etc.,   to  act  as,    607f. 
to   aid   .societies    for   prevention    of   cruelty,    etc.,    607c-. 
POLICY 

acts  avoiding-   policy,    2610. 

policy  may  provide  for  avoidance,   2611. 
agreement   not  to   transfer,    2599. 
breach    without   fraud,    2612. 

1244 


INDEX. 
[References  are  to  sections.] 

POLICY    (continued), 
definition  of,  2586. 
effect  of  receipt,   2598. 
evidence   of 

policy   may   provide   for,   2611. 

what    act.s    avoid,    2610. 
general    terms   of,    2591. 
insurance  by   agent  or  trustee,   2589. 
insurance    by   part   owner,    2590. 
open    and    valued    policy,    2594. 

open    policy,    what    is,    2595. 

valued    policy,    what    is,    2596. 
receipt,    effect    of,    2598. 
running   policy,   what   is,    2597. 
successive    owners,     2592. 
transfer,   agreement   not   to,    2599. 
transfer  of  thing  insured,  2593. 
warranties,    2603. 

express    or    implied,    2603. 

future  as  to,   2608. 

must  be  in   policy,  2605. 

no   particular   word   necessary,    2604. 

past  or  present,   as  to,   2606. 

performance  excused,   when,   2609. 
what   must   be    specified    in,    2587. 
whose   interest   is   covered,   2588. 
POLICY    OF    INSURAIVCE.      See    tit.    luNiiranor. 
POSSESSION.      See    tits.    Con.striutive    \o<i«e;    \otite. 
adverse  owner,  transfer  by,   1047. 
banker's   lien,   is   dependent   on,    3054. 
bottomry   lien,   independent   of,    3027. 
covenant  as  to,  implied   in   letting,   1927,   1950. 
damages    for   unlawful,    as    to,    3334. 
factor's     lien,     dependent     upon,     3053. 
gift,   of  necessary,    1147. 
lea^e,  renewal  of  by  continued,   1945. 
legacies  as   to  obtaining,    1363. 
lien    for  service,   dependent  upon,    3051. 

of   purchaser,    is   independent    of,    30.")  1. 

of    vendor,    is    dependent    on,    30l;i. 

Mot    entitled    lo    iisuallx'.    2927. 
when    entitled    to    personal    property,    2966. 
officer's   lien    is   dependent   on,    3057. 

1245 


INDEX. 
[References  are  to  section!--.] 

POSSESSION    (continu?(1). 

l)ledge.      See   tit.   Pledge. 

not  necessary  there  should  be   changre  of,   2088. 

proceedings  to  secure,   792. 

seamen,   lien    of    independent    of,    3056. 

shipmaster,  lien  of  independent  of,  3055. 

summary    proceedings    to    obtain,    792. 

transfer  as  security,  deemed  a  pledge,  when,  2987. 

vendor's   lien,    independent   of,   3046. 
POSSIBI>E 

contract    must    be,    1.596. 

what   is   deemed    to   be,    1596. 
POSSIBrLITV 

as  to  tran.sfer  of,  1045. 
PO.STHTMOl  S    CHII^iD.      See    tit.    riiborn    Child. 

as    to,    698. 

birth    of,    future    interests    defeated    by,    when,    739. 

deemed    living   at    time    of    death    of   parent,    1403. 

entitled   to  take,  when,   698. 

property  rights  of,  698,  739. 

succession    by,    698,    1403. 

unprovided   for   to    succeed,    1306. 
POWER 

delegation  of  by  minor,   33. 

execution    of,    860. 
POWER    OF    APPOIXTMEjVT 

effect  of  on  future  estate,   781. 

execution    of   instruments   under,    1095. 

knowledge    of    by    married    woman,    1094. 
POWER    OF    ATTORIVEV" 

of    married    woman.      See    tit.    Po«er   of    Attorney   of    Jlarried 
Woman. 

revocation   of,    1216. 

to  convey   realty,    1094,   1096. 

to   execute   mortgage,   2935. 

to    gratuitous    employee,    1094.  » 

POWER    OF    ATTORNEY    OF    MARRIED    WOMA^i 

acknowledged,    how,    1094. 

as   tp,   1094. 

husband   may  be  attorney  in   fact.   1094. 
POW'ER    OF    SALE 

when   mortgaged,   2932. 
POWER    TO    DEVISE.      See    tit.    AVill.s. 

how   executed   b>-  terms   of   will.    1330. 

1246 


INDEX. 
[References  are  to  sections.! 

POWERS.       See     tit.     Corporations. 

of    co-oi)erative    agricultural,    etc.,    a.ssociations.      See    tit.    Co- 
operative   Agricultural,    etc.,    ANHoelatloii. 
of  co-operative  corporations,  65Sx. 
PRECATORY    TRUSTS.       See    tits.    Trusts;    Wills. 
PRECATORY   WORDS.      See    tit.   >Vills. 
PREFERENCE.      See    tit.    Debtor   antl   Creditor. 
in  assignment   for  benefit  of  creditors,   .34!)l-3457. 
of  creditors   in   general,    34,32. 
of    messages,    2209. 
payment,  in,   3432. 
PREMIUM.       See    tits.     Homestead    Corporations;     Insurance. 
PRESCRIPTION 

adverse  possession.      See   tit.   Adverse  Possession. 
as   to  islands,   1016. 
as    to    title    by,    1007. 
PRESENT    INTEREST 

What  is,  689. 
PRESIDING    ELDER.       See    tit.    Religious    Corporations. 
as  to,  generally,   602. 
title  acquired  by,   1001,   1007. 
PRESUMPTION 

as    to   adequacy    of   damages   as    relief    for    breac;h    of    contract 

to  convey,  3387. 
as   to  bill  dishonored,   3135. 

as    to    extinction    of    contract    from    cancellation,    1699. 
child,    relinquishment    of   control    over,    211. 
collision,   on   violation   of  rules   of  navigation,   970. 
community    property,    164. 

consideration   for   negotiable   instrument.      See.  tit.    Negotiable 
Instruments. 
as  to,    3104. 

in    written    instrument,    1614. 
contract,    uncertainty   of,    1649,    16r)4. 
conversion,  damages  for,   3336. 
creditor,    retaining   part    porfoi-mance,    14  77. 
damages 

adequacy   of   relief   by,    2933. 
for  conversion,  3336. 
date    of    delivery.      See    tit.    Date. 
depositary,   as   to   fault    of,    18:16. 
divorce.      See    tit.    Divorce. 
as   to  residence,   129. 
from   lapse   of   time,    12ri,    126. 

1247 


INDEX. 

TReferences  are  to  sections.] 

PRESUMPTION    (continued). 

fee    simple,   as    to    passing    of,    1^0.^. 

fraud    repels   all,    3441. 

gift  causa  mortis,  in  a,  1150. 

grant,   as   to   the   time   of  delivery,    1056. 

lii'fing,    as    to.      See    tits.    Hiring';    Hiring;  of   Per.soiinl    I*r«»|»ertyi 

HtriiiK'  of   Real    Property. 
in  certain  cases   in  action   for  divorce,    125. 
in    joint    obligations,    1422. 
insurance.      See    tit.    In.suranee. 

as    to    knowledge    of    prior   loss,    2671. 

as  to  representations,   2574. 
lease 

as   to   renewal   of,    1945. 

as   to   term   of,   1943.  " 

legitimacy  of  child,  as  to,   193. 
obligation  being  joint,  as  to,  1430. 
on  certificate  of  shipmaster  favor  of  seamen,  2059. 
origin   of  ambiguity   in   contract,   as  to,    1649,    1654. 
Ijartnership  property,  as  to,   2406. 
real   property,   as  to   term   for   which   hired,    194.'?. 
rebuttal   of,    126. 

reformation   of  contract,   in,   3400. 
servant,   as   to   term  of  hiring,   2010,   2011. 
ship 

as   to   actual    loss   of,    2706. 

as    to    managing   owner's   compensation,    2072. 
transfer,   without  delivery  of  personal   property,   as  to  fraud- 

ulency,  3440. 
iiudue    influeuee 

as   to   of   husband.      See    tit.   Hus1>an(l   and  AVife. 

as  to  of  trustee,   2235. 
PREVENTION 

by    injunction.      See    tit.    lujuuotlon. 
of   performance,   as    to   effect  of,    1511-1515. 
of   reducing   contract   to  writing,   enforcement,    1623. 
preventive   relief,   as   to  when   granted,    3274,   3366. 
PREVENTIVE    RELIEF.      See    tit.    Injunetlon. 
as   to   generally,    3420-3423. 
how    given,    3366. 
how  granted,  3420. 

not  allowed    to   enforce   penalty,    3369. 
PRICE.      See  tit.   Sale. 

PRIEST.      See   tit.    Religious   Corporation. 
as   to,   602. 

1248 


INDEX. 

[References  are  to  seotionp.] 

PRINCIPAL. 

liound   by   instrument   intended    to   l)in<i    him,    when,    'Z'-Vi". 

for  acts  done  under  merely  ostensil)le  authority,   2334. 

liow  affected  by  acts  of  agent  within  scope  of  authority,  j:5;{0, 

liability.     See  Responsibility,  this  tit. 

where   exclusive   credit   given    to   agent,    2335,    2336. 

notice   to   ag-ent   is   notice   to,    when,   2332. 

oblig-ation   where   agent   exceeds   authority,    2333. 

responsibility    for   negligence    or   omission    of   agent,    2338. 
for  wrong-s  wilfully  committed  by  agent,   2339. 

when   bound    by   incomplete   execution   of  authority.    23.'!!. 

when  notice  to  agent  is  notice  to,  2332. 
PRIXCIPAL    AXD    AGEXT.      See    tits.    .Agent;    Prlnoipal. 
PRINTIIVG 

the  word   "writing"   includes,   1-4. 
PRIOR   GRAiVT.      See   tit.    Approprintion. 
PRIORITY 

Of  bottomry   liens,    3028. 

of    different    employments,    1988. 

of    liens 

according   to   their   date,    2897. 

upon   single  and   several  funds,   as   to,    2899. 

of   mortgage    for   purchase   price   of   land,    2898. 

of    record,    priority    as    to    right,    1214. 

of   suretj''s   pmiieitx'    over   principal's,    2850. 
PRIVILEGED    COHIMUXICATION.       See    tits.     Privileged     Piibll- 
eation;    Slander. 

enumeration    of,    47. 
PRIVILE(;ED    PLIBLICATIOIV.      See    tit.    I-ll»el. 

as   to   what   is,   47. 
PROBATE.      See   tit.   W'ill. 
PROCESS 

on   foreign   corporation,    service   of,    404. 

property   in,    980-985. 
PRODUCTS 

of    thing    hired,    1926. 
PRODUCTS    OF    THE    MIND 

effect  of  publication  of,   983. 

how  far  subject   to   ownership,   980. 

joint   authorship,    981. 

subsequent   authorship  or   invention,    984. 

transfer   of,   982. 
PROFESSIONAL    MEN.      See    til.    I.lbel. 
PROFILE    AND    MAP   OF   RAILKOAi>.      S.e    tit.   -vi-^ 

4.1  124<> 


INDKX. 

[References  are  to  sections.]  , 

PROFITS.      See    tit.    Marine    Insiiranoe. 

insurable   interest   in,    2664. 
PROFITS  AND   LOSSES.      See    tit.    Partnership. 

partner's   share   in,   2403. 
PltOMISli}  TO    MAItRV,  COIVTR.\(T,   BRfc:.VCH    Ol'' 

lireach  of,  damages  for,  3319. 
PROMISSORY     XOTK.       See    tit.     Negotiable    InstrumeutH. 

bill  of  exchange  converted  into,   when,  3246. 

certain  instruments  promissory  notes,   3245. 

certain    sections    of   code   applicable    to,    3247. 

definition   of,   3244. 

delay  In  presentment,  effect  of,  3248. 

effect  of  delay  in  presentment,  3248. 
PROMOTER.       See    tit.    Corporations. 
PROOF  OF  EXECITION 

certificate  of  officer  must  sliow,  what,  1200. 

evidence   of  handwriting  must  prove,   what,   119M. 

handwriting  may  be  proved,   when,   1198. 

liow    instrument    improperly   certified    may   be    corrected,    1202. 

judgment  proving  instrument,    1203. 

effect   of,   1204. 

subscribing    w^itness    must    be    personally    known    to    officers, 
1196. 

when    instrument    not    acknowledged,    how    made,    1196. 

witness    must    prove,    what,    1197. 
PROOF  OF  IXSTRITMENT.      See   tit.   Aoknowledgments. 
PROPELLING    POWER 

of  street  railroads,   497,   510. 
PIJOPERTV 

absolute  ownersliip  of,   G79. 

accession  to.     See  tit.  Accession. 

accumulation    of,    724-726. 

acquisition   of,   modes   of,    1001. 

alien's  right   to   take.      See    tit.   Aliens. 

alienation    of.      See   tit.    Alienation. 
restraints    on,   void,    711. 

alimony,    liability   for,    141. 

alternative  future  interests,   696. 

appurtenances.      See    tit.    .Vppurtenances. 

as   to  what  is,   654. 

chattel   Interests,    what   are,    765. 

classes  of,   657. 

common 

i\efi^-<^io^     '"".     685. 

1250 


INDEX. 
[References  are  to  sections.] 

PROPERTY    (continued). 
ooiiiniou    (continued). 

interests    in,    682. 

what  interests  are,   686. 
community.      See   tit.   Community   I'ropert.i. 
ciinditions.         See      tit.s.      ('omlitioiiN      r«»ii«'urr»'ii( ;      (oiMlitioii.v 

Precedent;   Conditions   Subsequent. 
confusion  of  g:oods,  as   to  effect  of,   102.5,   lOoO. 
contingent   interest  in,   wliat  is,   695. 
corporation,   as   to   right   of    to  acquire,    360. 
definition   of,   14,   654. 
division     of    by    husband    and     wife    on    separation.       Sec     tit. 

Husband   and    A\ife. 
divorce.      See   tit.    Divoroe. 

disposition   of  property,   ]4t!,    147. 
enjoyment,   as    to   fixing-   time    of,    707. 
entireties,  tenants  by,   husband   and  wife  ai-e,   68o. 
fixtures.      See    tit.    Fixtures. 

found   property,  claimant  of  must  prove   title,   1871. 
future  estates  in,   quality  of,   699. 
future    interests    in 

defeated    how,    7  40. 

defined,  690. 

in   the  alternative,   696. 

not   void,   wlien,    697. 

two  or  more,  696. 

vested  or  contingent,   693. 

what   recognized   as,    703. 
grod    will.      See    tit.   Good   Will. 
holding  by  co-operative  corporations,   653x. 

husband 

delits   of,    not   liable   for,    171. 

l)roi)erty    of,    not    liable    for    wife's    del)ts,     170. 
support    of,   when    liable   for,   170. 
iMi.shaiid   and    wife.      See   tit.    Ilusbanil   .-iiiil   AXil';-. 


as   to  accumulation   of,   722-733. 

defined,    748. 
increase   of,   as   to   ownership,   732. 
interest,    as    to   time    of   creating,    688-742 
inventions,    as    to    right    in,    980,    984. 
in  wliat   property   may  exist,  655. 
islands,  as  to  ownership  of,   1016. 


1251 


INDEX. 
[References  are  to  sections.] 

PROPERTY    (continued). 
joint    interest   in 

as  to,  683. 

defined,    683. 
kinds  of  property,  657. 
land.     See  tit.   Land. 
letters,  private,  to   whom  Ijelong,  985. 
limited  interest,  wliat  is,  692. 
modes  of  acquisition,   1000. 

by   accession,    1000.      See   tit.   AeoeMsion. 

by  exercise  of  the  power  of  eminent  domain,    1001. 

by   occupation,   1000.      See  tit.   Occupancy. 

by  prescription,   1007.      See   tit.   Prescription. 

by  succession,   1000.      See  tit.    Succession. 

by   transfer,    1000.      See   tit.   Transfer. 

by   will,    1000.      See   tit.   AVill. 
occupancy,   as   to  title  by,   1006. 
owner,    all   property   has,    669. 
ownership 

absolute    or    qualified,    678. 

absolute,    when,    679. 

classes  of,   682. 

definition   of,   654. 

of  interest,   as   to   time   of  creation,    688. 

several   interest,    what   is,    681. 

termination  of,    739-742. 

time    of    creating,    749. 
parents  support,  when  liable  for,  201. 
partnership    interest    in,    what    is,    684. 
perpetual   interest   in,   what   is,    691. 
personal    property.      See    tit.    Personal    Property. 
posthumous   children.      See    tit.    Posthumous   Children. 

right   in   property,    698. 
prescription,  title  by,   1007. 
present  interest  in,  what  is,   689. 
private    writings,    as    to    ownership    of,    985. 
products  of  the   mind,   ownership  of,   980-985. 
purchase    of    by    co-opei-at ive    as'rioultural,    etc.,    associations, 

653q. 
qualified 

interest,   as   to,   678. 

ownership,   as   to,    680. 
real  property.     See  tit.  Real  Propertj'. 
right  arising   out   of  obligation,   is   properly,    1458. 

1252 


INDEX. 
[References  are  to  sections.] 

PROPERTY   (continued). 

separate.       See    tit.    Separate    Property. 

of  spouses,   162,  163. 
.several    oiviiership   of 

as    to,    681. 

definition  of,  681. 

kinds    of,    682. 
state 

owns,   wliat,    670. 

riglit  to  liold  as  private  pi'opr'iet(ir,   (j(j'j. 
termination 

of   ownership   of,    7.39-742. 

of  tenancy  at  will,   notice  neces.sary,  7.S9,   79U. 
time 

interest  a.s  to,   688. 

of  creating  ownersliip   of,   749. 
title   deeds,   as  to,   994. 
trade-mark.     See  tit.   Trade-Marls. 
vested   future   interest,    what    is,    694. 
what  may  exist  in,  as  to,   655. 
who  may  own,  671. 
wife,    right  to   dispose   of,   162. 
writings,  private,  as  to  property   in,   980-985. 
PROPERTY"    RIGHTS.      See    tit.    Iliishana    and    AMfe. 
PROPOSAL.      See  tit.    Contraet. 
acceptance.      See    tit.    Acceptanoe. 

by   performance   of   conditions,    1584. 
communication   deemed   completed,    when,    1583. 
communication   of  acceptance,    1582. 
notice   of   acceptance   as   to    ne<'essit.v 

revocation   of,   1586. 

how  made,  1587. 
qualified   acceptance   of,   1585. 
to  contract,  acceptance,  effect  of,  1582,   1585. 
what    amounts    to    an    acceptance,    1582. 
PROTECTIOiV 

against   restraint   and    injury,    13,. 

of   personal   relations.      Si-o    til.    I'erNoniil    Kcliiiioii.s. 

as   to   general !>•,    4  9. 
right  to  use  force   for,   50. 
I'ROTKST.      See    tils.    Mills.    VcuoUjihle    iiis(  riiniciil.H. 

PROVISIONS 

for   domestic    use,    implied    wai'i-ant >■    in    sale    of.    177 

1253 


INDEX. 

[References  are  to  sections.] 

PROVISIONS    SIMILAR    TO    EXISTIIVG    LAAVS 

how   construed,    5. 
PROXY 

as   to,    321b. 

essential  to  validity  of,  321b. 

maximum  period  of,   321b. 

of    a    married    woman,    321b. 

revocability  of,   321b. 

void,    when,    321b. 

voting   by 

as  to,   generally,   212. 

in    co-operative    agricultural,    etc.,   associations,    653p. 
PUBLIC 

contracts,   interpretation  of,  against  private  party,  1069,   1652. 
deceit  upon,  as   to,   1711. 

grant,  interpretation  of,  against   grantee,  1069. 
nuisance.      See   tit.   Niiissanee. 
PUBLIC    ACCOMMODATION 

rights   of  citizens   in   places   of,    51. 
PUBLIC   AMUSEMENT 

riglits   of  citizens  in   places   of,   53. 
PUBLIC    AUCTION 

in  default  of  bidder  corporation  may  be  purchaser,  when,  343. 
sale  at,   highest  bidder  entitled   to  purchase,  342. 
PUBLIC    HIGHWAYS 

boundary   by,    what   passes,    1112. 
PUBLIC   PLACES 

as   to   rights   of  citizens   in,   53. 
PUBLICATION 

assessment   notice,   as   to,    335. 

delinquent  notice  of,   339. 
of  products  of  the  mind,   effect  on   ownership,   983. 
partners,  names  of,  2466. 
partnership 

of  certificate   of   special,    2482. 
of  change   of  name,    2469. 
of   notice    of   dissolution,    2453. 
privilege,   definition    of,    47. 
IH-oductions  of  the  mind,  as  to,  980,   984. 
proof  on   sale   of  corporated   stock,   348. 
"speoial    partnership 
of   affdavit    of,    2484. 
of  notice  of  dissolution  of,  2509. 
"PUFFING"   AT  AUCTION 
as  to,    1797. 

1254 


INDEX. 

[References  ai'e  to  section?. 1 

PLINITIVK   DAMAGRS.      See    tit.   Damaee.s. 
PUROHASK   MOIVKV 

lien  for,   3046. 

mortgage    for,   priority,    2808. 
PIHCHASKU.      See    tit.    Uses   anil   'rrii.««<.s. 

for    value    and    without    notice,    wlien,    8rj6. 

notice.      See   tits.      Notice;  Actual  an«l  Constructive. 

of    property    by    co-operative    aprricultural,    etc.,    a.s.sociations, 
653q. 
aUALIPICATIONS 

of    members    of    co-operative    agricultural,    etc.,    associations, 
653p. 
QUALIFIED  O^VXERSHIP 

what    is,    680. 
QUALITY 

as   to   in   general,   1773. 

damages  for  breach  of  warranty  of,  3313. 

of  domestic   provisions,    1776. 

provisions,    1776. 

warranty    of 

by    manufacturer,    1768,    1769. 
of   goods    sold    by   sample,    17  76. 
on   executory   sale,    1777. 
QUANTITY 

warranty    of.    Implied,    1773. 
QUIET   ENJOYMENT 

as   to   covenant   for.      See   tit.    r«»vennnt. 
as   to.   generallj',   14  63. 

implied   in   hiring,    when.      See   tit.    Hiring;. 

in   executory   contract   of  sale,    1733. 
QUO    AVARRANTO.       See     tits.     Co-operative     Itii.siness     ANSoein- 
tion.s;   Corporations. 

as    to,    generally,    358. 

against   co-operative   business   association,    54. 

in     relation     to     co-operative     agricultural,     etc.,     associations, 
653s. 

in   relation   to   co-operative   corporations,    653z. 

proceedings    thereon    and    respecting    coriioratioiis,    315. 
R.\CECOUKSE 

right   to  admission   to,  damages  for  refusal,   54. 
RAIL, 

([uality   to  be  used   by   railroad,   4!'l. 
R\  I  Lilt)  AD    COMMISSIONERS 

to   establish    i-ate.s  .and   charges,    18'.). 

12.=55 


INDEX. 
fRefercnces  are  to  sections. 1  ' 

RAILROAD    CORPOR.VTIOiXS 

accommodations   to  be  sufficient,   481. 

acquisition    of  otiier   lands   at   crcssings,    472. 

alleys,   streets,   or  water  of  city  may  be   used,   when,   472. 

amount   of   bonds   or  promissory   notes   to   be   issued,    456. 

annual  report  to  be  verified,  480. 

form   of    report,    480. 
assessment  and  transfer  of  stock,   45.5. 
bagg-ag-e   to   be   checked,    479. 

damages  for  failure,   4  79. 
bonds,    sinking   fund    to   pay,    457. 
business,    how    conducted,    479. 
capital   stock  to  be   fixed,   458. 

certificate  of  payment  of  capital  stock,  459. 
certificate  of  payment  of  fixed  capital  stork,   459. 
checks   to  be   fixed  to  baggage,   479. 

damages   for    failure   to   so   affix,    479. 
condemnation,    468.  % 

consolidation   with    other   railroad   corporations,    473. 

articles   of   incorporation   and   consolidation,  47.3. 

proceedings  necessary  thereto,   473. 
articles  must  be  filed,  where,  473. 
inemorandum    of    ratification,    473. 
method  of  signing  articles,   473. 
subrogation   of   new   corporation,  473. 
crossing   through   railroads   or   liigiiways,  acquisition    of  addi- 
tional  lands,    472. 
crossings   and    intersections,    469. 
crossings 

and  intersections,   469. 

right  to  private  crossings  over  railroad,  4S5a. 

through    railroads    or    highways,    acquisition    of    additional 
lands,    472. 
damages 

for   failure    to    maintain    fences,    485. 

for   killing   stock,    when,    485. 

not  liable   for   in  certain  cases,   485. 

not  liable    for   killing   stock,    when,    485. 

recoverable   by    railroad    company    for    failure    of   owner    to 
fence,    485. 

resulting  from   violation   of    rules   of   comimny,    4  84. 
directors  to  be  elected,   when,    454. 
duties   of  corporations,   481. 
earth   may  be  taken   from   state  lands,   4 76. 

1250 


INDEX. 
[References  are  to  sections.] 

RATT.nOAD   CORrORATIOXS    (continind  ). 
ejectment.      See    tit.    Ejeotion  of  Passengers. 

elevated     or    underground     railroads,     franchise     granted     by 
whom,    492. 

petition,   by   whom   signed,   492. 
enumerated   powers,   465. 

grant   not    to   embrace   town    lots,    475. 

to  accept   real   estate,  465. 

to  acquire   real  estate,   465. 

to   carry  persons   and   freight,    465. 

to   consolidate   witli    other   roads,   47."?. 

to   cross,   intersect,   etc.,   other   railroads,   465. 

to  enter  upon   lands   to   select  and   survey   route,    4  65. 

to  erect  buildings,   465. 

to  establish  rules  for  management  of  business,  465. 

to  lay   out  roads  and   width   of,   465. 

to  lease  or  use  another  road   In  common,   il?,a.. 

to    purchase    lands,    timber,    stone,    etc.,    465. 

to  purchase  other  roads  not  in  competition,  465. 

to   regulate    time   and   tolls,    subject   to   legislation,    465. 

to  select  and   survey  loute,   465. 

to  take  grant  of  state  lands,   4  74. 

to  take  wood,  stone  and  earth  from  state  lands,  476. 

wliere   may    construct   road,    465. 
fences,    duty    to    maintain    and    liability    for    failure,    4S5. 
forfeiture   of  franchise,   as   to,    468. 

by   failure   to   operate,    468. 

exception,    468. 
fi-anchise,  forfeiture   of  by  failure   to   operate,   468. 
highways,    crossing    of,    acquiring    additional    lands,    472. 
interest,    limitation    upon   amount   of,   456. 
lands  of  to  revert  to  state,  wlien,   477. 
leasing  and   using   another  road   in   common,    47.'la. 
map   and  jproflle    to   be    filed,    466. 

must  be  certified,  466. 
may  borrow  money,  456. 
may  change  line  of  road,   467. 

how  new  location   to  be  run,   467. 
may  issue   bonds,   456. 
may  sell   property  and  franriiises   to   other   railroads,    liil. 

competing  roads  siiall   not   be  purchased,   494. 

debts    incurred,   not   relieved    from,    494. 

fares   and    tolls  shall    not   be    increased,    494. 

penalty  for  violation,  duty  of  attorney-general,   4:'4. 

terms  and  conditions  of  sale,   494. 

,       .  1257 


INDEX. 
[References  are  to  sections.] 

IlAIl^ROAI)    CORPORATIONS    (continued), 
motive  power,   what   may  be  used,   465a. 
new    location    of   road,    liow    to   be    run,    467. 
officers   of,    454. 

to   wear  badg-es,    4  88. 
passenger   refusinj?   to   iia,\'   fare   or   surrender   ticket.      See   tit 
Ejeclioii  of  Pa.Siseiisers. 

damages    for    refusal    to   carry,    4Si'. 
penalty   for   failure    to   provide    tickets,    490. 
printed    regulations    must   be    posted,    484. 
private   crossing   over   railroads,   rigiit   to,    48oa. 
profile   and   map   to   be   filed,    466. 

must   be    certified,    466. 
rail,    quality    to    be    used,    491. 

railroads,    crossing   of,    acquiring   additional    lands,    472. 
rate  of  cliarges  established  by  railroad  commissioners,  489. 

copies.of  rates  to  be  posted,  wliere  and  by  wliom,   489. 

further    publication    to   be    made    by    the    board    of    railroad 
commissioners,    489. 

notice   of  to  be   served,   489. 
regulations    of    trains,    489. 

action    to    be    prosecuted    by    district    attorney,    486. 

bell   to   be    rung,    486. 

liability   in   damages   for   failure    to   observe  statute,    486. 

penalty   for   neglect   to   ring  bell   or   blow    whistle,    486. 

whistle  to  be  blown,  when,  486. 
room    inside    passenger    cars    to    be    furnished,    iS?>. 
selection  of  st.ate  lands,  how  proved  and  certified   to,  478. 
sinking  fund  to  pay  bonds,  457. 
state   lands   may   be   granted   for  use   of  corporation,    4  74. 

grant  not  to   embrace   town  lots,   475. 

selection    of,   how   may  be    proved   and   certified,    478. 
stone  may  be  taken  from  state  lands,  476. 
street  railroads.      See  tit.    Street   Railroad.^. 
subrog.ation   of  new  corporation   on   consolidation,   473. 
ticket 

entitles   purcliaser    to    what,    490. 

penalty    for    failure    to   provide,    490.* 
t;me   of  running  to  be   fixed   by  public   notice.   481. 
transfer   of   stock,    455. 

not  valid   except,    455. 
using  another  road  in  common,   473a. 

wood,   stone,   and    earth   may   be   taken   from   state   lands,    476. 
RAILROAD  FEXCE.     See  tit.  Fence.s. 

1258  I 


TNI^EX. 
[Referpnce.s  aie  to  sections. 1 

RATIFICATION 

of   agent's   act.,    2.'>10-2316. 
of    contract 

void   for  want  of  con.sent,    ir)88. 

voidable,    1588,    2310. 
partial,    becomes    total    when,    2311. 
prejudice  of  third  person,   not  allowed,   2313. 
rescission    of,    2314. 
void,   when,   2312. 
RKAL    PROPERTA' 

action   for   possession    of,    3375. 

agent'.s   autliority  to   sell    includes,    what,   2324. 

Itoundaries 

as   to,   generally,   830. 

by    waters,    830. 

by    ways,    831. 

right  to  surface  and  things  above  and  heneatli,   S29. 
easements.      See  tit.  ICnMenieutis  and  Servitude's, 
eflfeet  of  trani^fer 

conveyance    by    owner   for   life   or   for   years,    11  lis. 

easements.      See   tit.    Easements. 

fee   simple   title  passes,   when,    1105. 

grant,    how    far   conclusive    on    purchaser,    HOT. 

grant    made    on    condition    subsequent.      See    tit.    t'onditions 
Subsequent. 
as  to  generally,   1109. 

grant  of  rents,  reversions,  and  remainders,   1111. 

grant  on   condition.      See   tit.   Conditions. 
when    absolute,    1110. 

implied   covenants.      See    tit.    Iniiilifd    <'o>  ciiiints. 
as  to,  generally,   1113. 

lineal  and  collateral  warranties  abolished,    1115. 

subsequently-acquired    title    passes,    when,   by    operation    of 
law,    1106. 

ways.      See   tits.    Public   Hig-liwaj's;  Ways. 

what    easements    pass    with    property,    110-1. 
ejectment'.       See    tit.    E.ieetnient. 
estates    in.      See    tit.    Estates   in    Real    Property. 

as  to,  generally,  818. 
general  provisions  as   to,   755. 
how    governed,    755. 
kinds  or  classes  of,   658. 
land.      See   tit.   Land. 

lateral  and   subjacent   support.      See    tit.    i.nieriil    Sniiport. 
lime-trees,    834. 

1259 


INDEX. 
I  TleferciU'es  are  tu  sections.] 

REAL   PROPERTY    (continued). 
obligatiou.s   of   o^vuers 

as    to,    generally,    840. 

ditches,    flumes,    etc.,    liability    as    to,    S4i;. 
neglect  to  pay  expenses,  843. 

duty  of  tenant   for  life,   840. 

monuments  and  fences,  841. 
ownership.  See  tit.  OT\-uer.*iliiii. 
power.      Title   V.    Following,    STl. 

execution    of,    860. 

of   appointment,    effect    of,    781. 
rigrhts   and   obligations   of   o^vners 

as   to,   generally,    818-843. 

rights   and   remedies   on   lease   for   life,    823. 

rights  as   to   rent.      See   tit.   Rents. 

of  grantees   of  rents  and   reversions,    821 
of  lessees   and   their  assignees,    823. 
of  lessor  against  lessee   and  assignee,   822. 
rights  of  tenant  for  life.      See  tit.  Tenant  for  Life. 

of  tenant  for  years.     See  tit.  Tenant  for  Years. 

on  lease.     See  tit.  Lease. 
servitudes.      See   tit.   Easements  and   Servitudes. 
transfer  of.      See   tit.   Real  Property,  Transfer   of. 

to  one  for  money  paid  by  another,   853. 

trust    presumed,    853. 
trees,   trunks   of  which  are   wholly   on  land,   833. 
uses  and   trusts.      See   tit.   Uses  and  Trusts. 

as  to,   generally,   847-871. 
writ   of   assistance.      See   tit.    ^V^it   of   Assistance. 
writ  of  possession.      See  tit.  AVrit  of  Possession. 
writ  of  restitution.      See   tit.   AVrit   of  Restitution. 
REAL,   PROPERTY,  TRAXSFER    OF 
as  to,  1091. 
modes   of,    1091. 
requisites    for    transfer    of   certain    estates,    1091. 

attorney   in   fact   must   execute   for   principal.      See    tit.    .\t- 
torney  in  Fact. 
as   to,    generally,    109."). 

by    married    woman,    how    acknowledged,    1093. 

as   to,    generally.      See    tit.    Married   AVomen. 
conveyance  where  name  of  person   has  been   changed,   1096. 
form    of    grant,    1092. 

power    of    attorney    of    married    woman,    how    acknowledged. 
See   tit.   Power  of  Attorney   of  Married  Woman. 

as  to,  generally,   1094. 

1260 


INDEX. 
[References  are  to  sections.! 

RECITALS.      See   tit.   Deeds. 

in  deed  wlien  resorted   to,  10G8. 
RECORD 

of    defectively-executed    in.strument    impart.s    notice,    1207. 
of  htcatioii   of  minings  claim 
copies  of  as  evidence,  1426q. 
to   be   received    in    evidence,   1426p. 
of  marriage 

as  to   generally.      See   tit.    Marriage. 
of  certificate  of,  69a. 
of  yearly  ^Tork  on  mining  el  aims 
as   to,   generally,    1426m. 
recorder's  fees,   1426m. 
RECORDATIOX.      See    tit.    Reeording    Transfers. 
fees   for.      See   tit.   Reeorder   Fees   of. 
instrument    deemed    reoortled,    «'hen. 

fees    of,    non-payment   immaterial,    1171. 
what    instruments     to    be    acknowledged    before    entitled     to, 
1162. 
ItECORDER 

duties,   of,    1172. 

fee  for  recording  certificate  of  residence  of  corporation,   116:5. 
fees    to   be    indorsed   on    instrument    recorded,    1165. 
RECORDING    TRANSFERS.      See    tit.    Recordation. 

acknowledgment  of  proof  of  instruments.      See   tit.    .Vcknowl- 
edgment. 
as  to,   generally,   1173,   1213. 
as    to    what   may   be   recorded,    1158. 

acknowledgment  necessary  to  record,   when.      See   tit.   Ack- 
noT\'ledgment. 
as   to,   generally,   1162. 
certificate   of  residence  of  corporation,   116:;.  ' 
certified    instrument    recorded,    when,    1162. 
fees   of   recorded   to   be   indorsed,    1165. 

judgment  may  be   recorded   without  acknowledgment,    1159. 
letters    patent    may    he    recorded    without    acknowledgment, 

1160. 
location    of    mining    claim    recorded    witliout    acknowledg- 
ment,   1159. 
mortgage   to  be   recorded,   1163. 
transfer   in    trust   to   be    recorded,    1164. 
conveyance    defined,    1215. 

conveyances   to   be   recorded,   or  are   vnid,    1214. 
constructive    notice,    1163. 

1201 


INDEX, 
r  References  are  to  sections.! 

RECORDING   TRANSFERS    (eontinned). 
effect  of  want  of  record,   1163. 
mode   of  recording.     See   tit.    Record. 

books   of  record,   1171. 

deemed  recorded,  when,  1170. 

duties  of  recorder,   1172. 

In  what   office,    1169. 

transfer    of    vessels.    1173. 
recording  certified  copy   of  recorded  instrument,   1218. 
unlawful  transfers.     See  tit.'  Unlawful  Transfer.-*. 
unrecorded    instrument   valid    between    the   parties,    1217. 

RECORDS   OF   CORPORATION 

evidence  to  prove  what,   365. 
how    kept,    365. 

other  records  to  be  kept  by  certain  corporation,   365. 
restoration   of.      See   tit.   Reissuanoe;   Re.storatliin. 
to   contain   what,    365. 
REDEMPTION.      See    tits.    Mortgage    Foreolo.stire.sj    Tax    Sales. 
contract  in   restraint  to,  void,  2889. 
from  foreclosure 

as  to,'  2931,   2967. 

right    to   redeem   pledge,    2947. 
of  franchise 

from   execution  sale  of,   392. 

from   lien,    2903-2905. 

RE-ENTRY 

right  of  can   be   transferred,   1016. 

transfer  of  right  to,  1046. 

when   and  how  to   be   made,    791. 
REFEREE 

in   action   for   divorce,    130. 
REFORMATION.      See    tits.    Contracts;    Deeds;    Married    AVonien, 

of   contract.      See   tit.    Contracts. 

presumption   as   to   intent.    3400. 

rules  for,   3401. 

specific  performance  of  after,   3402. 
REFUSAIi.      See    tits.    Divorce;   Husband   and    AVifc. 
REGISTRATION.      See    tit.    Recordation. 
REGISTRY.      See   tit.    Ships   and   Shipping. 

of    marriage   certificate.    69a. 

of  ship   for  voyage,   966. 
REIMBURSEMENT.      See    tit.    Fraudulent    Transfer.«i. 
REIXSIIRANCE.      See    tit.   Insurance. 

1262 


INDEX.  • 

LUefereiici's  arc  to  .sections.] 

KEI.SXl  A.\CK.      See   tit.    |{t'.sl<>ratioii. 

of   bonds    of   corporation,    329. 

of  lost  certificates  of  stock,  36.5. 

of  lost  private  document  of  instruments,  3  1U-J. 

of   lost   records    of   corpoiation,    36.5. 
RELATION 

doctrine  of  as  ajiplied  to  ;ippr(ii)iia t ii>n   nf  waters,   141S. 
RELATIONS  HIP 

degrees   of.   how  computed,    ]  3S!i-i :;;):!. 

half-blood.      See   tit.   Half-hlood. 
as    to    right    to    succeed,    1394. 

husband    and    wife,    cannot    impair,    159. 

succession,    through   illegitimate,    1388. 
RELATIVES 

alien,  succession  by,  1404. 

legacies  to,  when   chargeable  with   debts,   1361. 

to   protect    child    from   personal    abuse,    203. 
RELEASE 

claims   which   are  not  affected   by,   1542. 

creditor,    how^   made    by,    1541. 

debtor  by  substitution  of.  1531. 

obligation   extinguished   by.   1541. 

of  future   interest 
as   to,    699. 
extent   of,    generally,    1542. 

of  guardian   by  ward.    256. 

of    .ioint    debtors,    1543. 

extinguishes   obligatinn,    15  11. 

of    one    of   several    .ioirt    debtf>rs.    effect    of,    15  43. 
RELIEF.      See    tits,    nainnses;    IJivoroe;    Equitable    Relief;    .\ul- 
sanee. 

in   case   of  forfeiture,    3275. 

preventive.      See   tit.    Preveiiti^e    Relief. 

species    of    relief,    3274. 

specific    and    preventive.      i-!ee    tits.    Specifie    Relief;    Preventive 
Relief. 

what    granted    in    divorce,    136. 
RELIGIOIS    BELIEF.      See    tit.    AVilLs. 

RELIGIOUS.     SOCIAL      AND      BE>E\ OI.E.V  T      ( ORI'OR  ATIOXS. 
See    tit.    Corporations. 

additional   facts,   articles  to  set  out,   594. 

amount  of  real   estate  that  may   be  owned   b>-.   595,   596. 
friendly,   etc.,  societies,   596. 

annual   report  to  bo  made  and  verified  b.v  directors,   597. 

burial  plots  in   grounds  of  may   be  sold,   how,   598. 

1263 


INDEX. 
[References  are  to  sections.] 

RELIGIOUS,  ETC.,  CORPORATIONS   (continued), 
by-laws.     See  tit.  By-Laws. 

as  to  generally,  599. 
consolidation  of  debts,  605. 

new  articles  to  be  filed,   605. 

public  notice  given,  605. 
friendly,   etc.,  societies,  amount  of  land  ma.v   hold,   596. 
may    bond    real    property,    598. 
may  mortgage  real  property,   59  8. 
may   provide,    what,    599. 
may  sell  real  property,  598. 

member    cannot    transfer    his    membersliip,    601. 
members   admitted   after   corporation,    600. 

notice   by  publication   for   leave   to   sell   mortgage,    etc.,    598. 
number  of  directors,   593. 
religious    society   may   become   corporation   sole,    602. 

articles    of    incorporation,    to    set    forth    what,    602. 

certain  limitations  do  not  apply,   602. 

continuation    of   corporation    sole,    602. 

powers   of,    602. 
reli'gious   society   may   elect  directors  and   incorporate,    603. 

by-laws,    enactment,    repeal,    and    amendment,    604. 

certificate   of  incorporation   to  be   filed,   603. 

convention,    etc.,    to    elect    directors,    603. 

directors,  election  of,   604. 

limitations   which    do    not    apply    to,    604. 

name,  purpose,   and   term   of  corporation,   604. 

property   in   trust   for   the   society.    603. 

signature    by    secretary    and    president,    604. 
REI-INQITISHMENT 

of  custody  and  services   of  child,   211. 
REMAINDER 

as    to    construction    of,    780. 
contingent,   778. 

on  pri'or  remainder   in   fee.    772. 
created,   when   is,   773. 

death    of   devisee   before    testator,    effect    of,    1344. 
definition  of,   769. 
for   life    upon    term,    777. 
on   term   of  years,    776. 

owner  right  to  sue  for  injury   to   inheritance.   826. 
successive,   estate   upon,   for   life,    774. 
validity   of.  764. 
what  title  vests  under,  781. 
when   created,    773. 

1264 


INDEX. 
IRfforences  are  to  sections.] 

REMAIN  DKRMAN 

interest    of    not    affected    by    death    of    devisee    of    legatee    be- 
fore  testator,   1344. 
KEiMAIXDKR.S     AMD     REVERSIONS.      See     tit.     ReversioiiK     ami 
Reinaiuders. 

certain    remainders    are    valid,    764. 

construction   of  certain  remainders,   7S0. 

contingent  remainder  in  fee,   772. 

contingent  remainder  on  a  term  of  year.s,  776. 

effect  of  power  of  appointment,   781. 

heirs   of  tenant   for   life   take   as  purchasers,    when,    TT'.t. 

limitation  of  successive   estates   for  life,   774. 

remainder,   contingent   in   fee,   772. 

future  and  conti'ngent  estates,   how  created,   77:1. 

for  life,  777. 

upon  a  contingency,  778. 

upon   estates   for   life    of   third  persons,    775. 
remedy    for    injury    done    to    the    inheritance,    826. 
REMEDIES.      See    tit.    Preventive    Relief. 

RENTS    AND    REVERSIONS 

rights   of   grantees    of,    821. 

RENTS,   ISSUES,   AND    PROFITS 

acceptance   of   rent,    renewal    of    lease,    when,    1945. 

as   to   when  payable,   1947. 

covenant  to  pay,   1462. 

dependent   on   life,   as   to   collection    of,    825. 

express  trust  to  receive,   857. 

forfeiture,  by  letting  part   of  room,    ll(5(i. 

grant  of,   1111. 

right    to    recover    for,    821. 

ItayiiiPiit   of 

remedies   by    assignees   of,   822,    823. 
for   recovery   of,    822. 
servitude.      See  tit.   Servitude. 
term  of,  indicated  by  rent,  1943. 
to   be   made,   when,    1947. 
treble   rent   for    holding   over.    3345. 
trust  to  receive,   express.   857. 
under    lease   for   life.    824. 
when   payable,   1947. 
RENTS,   REVERSIONS,    AND    REMAINDERS 
apportionment  of,   1111. 
as  to,  1111. 

1265 


INDEX. 
[References  ai-e  to  sections.] 

UIOI'AIK 

borrower   to   make,   when,    1889. 

by   hirer   of  personal   property.      See   tit.    Hiriu^;. 

at  expense  of  letter,  1956. 

when  to  make,  1929. 
coterminous   owners  to   repair    fences,    841. 
landlord   to   repair,   when,    1941. 
letter  of  personal  property,   to  repair,    19i).>. 
owner 

coterminous   to   repair  fences,    841. 

of  estate   for  life,   to  make,   840. 

of  ship   for  voyage   to  make,    965. 
shipmaster   may,   2373. 
tenant 

at    expense    of    landlord,    when,    1586. 

for  li'fe  to  repair  fences,  840. 
REPAYMENT 

of  loan,  in  current  money,  1913. 

UEPEAl^ 

effect    of,    20. 
UEPIjEVIX.      See    tit.    Claim    and    Delivery. 

ItEPI^ICATION 

evidence   of  payment.   See   tit.    Payuien*. 

REPORT.     See  tit.   Libel. 

KEPI  BI.ICATIOjV.     See  tits.   Codicil:   AVill. 

KRPIGXAXCE.      See  tit.   Interpretation  of  Contraets. 

in   contract,  as  to,   1652. 
ItEPlGNAXCE    BETWEEN    .STATrTES.     See    tit.    Statute.s,    In- 
terpretation. I 
UESCISSION.      See    tit.    Contraet.s. 
by  buyer 

at  auction,   v.'hen,    1796. 

if    seller    refuses    i'nspection,    17S.T. 

on  breach  of  warranty,  1786. 
consent    not    free,   may   be   made,    1566. 
contract.      See  tit.   Reseis.sion  of  Contraets. 

in  what   cases  allowed,    1684. 

when  adjudged.   3046. 

where   consent  not  free,    1566. 
equity  must  be  done  by  party.  3408. 
extinguishes   contract,    1682. 
grounds  for,  3406. 
how    effected.    1691. 
infant's  contract  of,   35. 

1266 


INDEX. 

[Ueferenees  are  lu  sections.  1 
/ 

IIESCIS.SIOX    (conliiiued). 

insurance 

for  concealment,   2562-2.567. 

for  false   representations   in   niatei-ial    manner,    25S0. 

when    to    be   exercised,    2583. 

lunatic's  contract.   39. 

mistake    for,    wlien,    3407. 

novation.     See  tit.  IVovution. 

obligations,    of   alteration   of,   effect,    2821. 

of  insurance   contract,    2583. 

of    ratification    of    agent's    act,    2314. 

of   sale,    for    non-payment    of    price,    1749. 

person   without   undeistanding,    39. 

ratification,   as   to,    2314. 

requirements  on  judgment  of,   3412. 

stoppage   in   transitu.      See   tit.    Stoppage    in   TransHu. 

valuation,  fraudulent,   for,   2736. 

violation   of  warranty,    2608. 
RESCISSION    OF    CONTRACT 

as   to   when   may   be  changed,   3406. 

court  may   require   party    rescinding   to   do    equity,    340S. 

for    mistake.    34Q7. 
RKSERVK    FUND.      See    tits.    InNurance    Corporations;    Savin^M 

Banks. 
RESIDENCE.      See   tits.   Husband  and  Wife;   Minors;  Parent   and 
Cliild. 

of  minor  child,  parent  may   determine,   213. 
RESIDUARY   CLAUSE.      See   tit.    Wills. 

as    to,    1332,    1333. 
RESIDUE 

on   remainder,    776. 
bequest   of,    1280. 
devise  of,  1332. 
RES   JUDICATA 

.iudgment  of,   annulment  of  marriage  is,   84. 
RESOI-UTION     TO     MACADAMIZE.       See     tit.     Constriietion     No- 
tice. 
RESPONDEAT   SUPERIOR.      See   tits.   Master  and   Servant;   Xe^- 

liRenee. 
lii<:SPONDENTIA.      See     tits,     itottomry;     Ships    and     Shipping. 

by   master,    3038. 

by  owner,  3037. 

definition   of,   3036. 

fraudulent  conveyance,  delivery,   34  40. 

interest,    rate    of    on,    3039. 

liiw  of  mortgages  does  not  affect,   2942. 

1267 


INDEX. 

[Refereni'e.s  are' to  seotions.] 

RESPONDENTIA    (continuccD. 
master's,   3038. 

obligation   of   ship-owner,    3040. 
owner 
by,    30  3  7. 

obligations  to  repay,   304 U. 
rate  of  interest,  3039. 
subject  to  law   of  liens,   2877. 
RESTORATION.      See   tits.   Pledge;   Reissuance. 
of  lost  original  articles  of  incorporation,  297a. 
of  lost  records,  etc.,  of  corporation 
as   to  proceedings  for,   365. 
judgment  and  decree  on,   36p. 
jurisdiction  of  court,  365. 
notice   of   hearing 

proof  of  publication  and  service  of,   365. 
publication  of,   365. 
service  of,   365. 
petition  for,  365. 
of  property  pledged,    effect   of,   2913. 
RESTRAINT   OF   MARRIAGE 

void,   when,    710,   1676. 
RESTRAINT   OF   TRADE.      See   tit.    Contracts. 

contracts   not   void,    1673. 
RESTRAINT   ON   AMENATION 
as   to,    711. 

future   interests   suspending  power  of,   void,   716. 
lea.ses  of  agricultural  lands  for  more  than  ten  years,  void,  717. 
of  city  lots   for  more  than   fifty  years,  void,   718. 
RESUI^TING  TRUSTS.     See  tit.   Uses  and  Trusts. 
RETROACTIVE.     See  tit.   Statutes. 

code   is   not,   3. 
REVERSIONS.     See  tit.  Rents,  Reversions,  and  Remainders. 
REVERSIONS    AND    REMAINDERS.       See    tit.    Remainders    and 
Reversions. 
remainder,    what    is.    7  69. 
reversion,  what  is,   768. 
REVISION  OF  CONTRACTS 

as  to  when  may  be  revised,  3399. 

enforcement   of   revised   contract,    3402. 

evidence    on    action    for,    declaration    of    grantor    admissible. 

when,  3400. 
intention  of  parties  presumption  as  to,  3400. 
presumption  as  to  intention   of  parties.   3400. 
principles    of   revision,    3401. 

•  1268 


INDEX. 

1  References  ai'e  to  seetinns.] 

KEVOCATIOiV.     See   tits.   Coutracl;   Wills. 

antecedent  will,  not  revived  by,   1297. 

by  subsequent  will,  1296. 

conveyance  not  a   revocation,  when,    1303. 

evidence  of,    1293. 

i's  a  revocation,  when,  1304. 

mortgage  not  a,   1302. 

of  codicils.     See  tit.  Codicil. 

as  to,  generaJly,   1305. 
of  condonation,  121. 
of  consent  to  separation,   101. 
of  continuing  guaranty,   2S14. 
of  duplicate  will,  1295. 
of  gift  in  view   of  death,   1150. 
of  power   of  attorney,    1216. 
of  proposal   to   contract,    15S6. 
of   trust,    2280. 
sale  not,   when,   1301. 

REWARD 

finder  of  property  entitled  to,  what,   1S71. 
RIDING  ON  PliATFORM.     See  tits.  Negligence;  Street-Car  Rail- 
vrays. 

RIGHT 

to  use  force,  50. 

RIGHT  OF  \VAY 

fire   companies   running   to   fire   to   have,    453b. 

i'n  general,   SOI,   802. 

selection   of  by   railroad,   478. 

restrictions  on  street  railways,   498. 

telegraph  and   telephone  companies,   right  of,   536. 
RIGHTS   OF   CITIZENS   IN    l»I,ACE«»   OF   PI  lU.lC   ACCO>IMODA. 
TION  OR  AMUSEMENT 

as  to,  51. 

damages  recoverable  for  violation  of,  52. 

wrongful   refusal  to  admit  to,   53. 
damages  recoverable  for,  54. 
UIGHTS    OF    OWxNERS 

to  income  property,  733. 

to  increase  of  property,  732. 
RISK  OF  EMPLOYMENT.      See    tit.    Mn.ster  ami    Scrvsjiit. 
ROADS 

for  horseless  vehicles,   franchise    to  construct,    524. 

telegraph  and   telephone  companies  may   use,   536. 
ROOMERS  AND  LODGERS.     See  tit.  HoincNteail. 

1269 


INDEX. 

[  Koferences  are  to  seftions.l 

HOOMS.      See    tit.    I.uiullorti   aud   Tenant. 

letting  parts   of   forbidden,   1950. 
RULES   OF  NAVIGATION.     See   tits.    .Sliip.s   and   Sliippiui;. 

breach  of  rule.s,  effect  of  in  collision,   971. 
collisions,  970. 

from  breach  of  rules,   971. 

wilful  default,  972. 
loss,   how  apportioned,    973. 
SAFK  PLACE  TO   RIDE.      See   tits.  Railroads;   Street  Railroads 
SALE 

agreement  of  sale,  as  to,  1726. 
agreement   to   sell    and   buy,    1729. 

what  may  be   the  subject  of  the  contract,   1730. 
agreement  to  sell  real  property,    1731. 

as  to,  generally,   1731-1734. 
as  to  sale,  generally,   1721. 
by  auction,  as  to,  1792. 

auctioneer's   memorandum   of  sale,    171iS. 

by-bidding,    1797. 

common-law  covenants  required,  1733. 

contract  to  manufacture,  1740. 

to  sell  personal  property.      See  tit.   Personal   Property. 
to  sell  real  property,  1741. 

rights   of  buyer   upon   sale  without    reserve,    1796. 

under  written   condition,    1795. 

wlien   complete,   1793. 

withdrawal  of  bid,  1794. 
form   of   covenants,    1734. 
of  provisions  for  domestic   use,    1775. 

on  sale  of  good-will,   1776. 

vipon  judicial   sale,    1777. 
of  stock  in   trade,   recordation   of,    3440. 

ri^fhts  and  obligations  of  the  buyer 

before  delivery,   1748 

when  seller  must  act  as  depositary,   174S. 
delivery  on  demand,  1753. 

buyer's    directions    as    to    manner    of    sending    thing    pur- 
chased,  1757. 
expense  of  transportation,  1755. 
notice   as   to   delivery,    1756. 
where  made,   1754. 
within   reasonable  hours,   175S. 
stock    in   trade,   of,   recordation,    3440. 
subject  of  sale,  what  is,  1722. 

1270 


INDKX. 

Llieffiences  are  to  section^^.J 

SALE    (eontiiuied ). 

transfei'   bj'.      ISee   tit.    'I'raii.sl'tT. 
warranty,      fc'ee   tit.    \>arraiilj. 

as  to,   generally,   1763. 

manufactuier's  warranty  against    lattnt  defcctis,   176U. 

merchandise  not  in  existence,   1T6S. 

no'  implied   warranty,   wlien,    1764. 

on  sale  by  written  instrument,   1774. 

thing   bouglit   for  a  particular  purpose,    1770. 

warranty  on  sale  by   sample,   1766. 

where  seller  knows  buyer  relies  on   statements,    1767. 

where  thing'  cannot  be  examined  by  buyer,  1771. 

SALVAGE 

as  to,  2079. 

priority  of  lien  for,   3029. 
who  entitled  to,  2079,  2725. 
SATISFACTION.     See  tit.  Aoourd  and  Satisfaction. 

of  judgment  against  corporations,   384. 

against  homestead,  1241. 
of  legacies  and  gifts,  1367. 
of   recorded   mortgage,   293S,    2939. 

by    foreign    administrators    and    executors.       .See    tit.    >I«>rt- 

penalty  for  refusing,  2941. 
what   operates  as,   1523. 
SAVINGS   AND    LOAN    ASSOCIATIONS.      See    tits.    Corpurations: 

Building:   and   Loan   A.s.soeiatiuns. 
SAVINGS   AND   LOAN   CORPORATIONS 
amount  of  capital  stock  required,   580. 
to  be  paid  in,   580. 
to  be  subscribed,   580. 
biennial   report   of   unclaimed   deposits.    583b. 
cannot  purchase,  hold,  or  convey  bonds,  securities,  etc.,  57  4. 
cannot  purchase,   hold,   or  convey   real   estate   other   than   that 

specifically  allowed,  574. 
cannot   purchase,    own,   or    sell    personal    property    except    that 

required  for  its  business,  574. 
capital  actually  paid   up   must  be  published,   5S3a. 
capital  stock,  rights  and  privileges  thereof.  572. 
certificate  of  deposit   transferable  may   be   issued  by,   576. 
"create  debts."'   definition   of,    579. 

directors  may  not  contract  any   debt   or   liabilit.\'   against  cor- 
poration,   573. 
dissolution,   disposition   of  reserve  fund   on,   577. 
dividends,  to  be  made  from  surplus  funds,  583. 

1271 


INDEX. 
[References  are  to  sections.] 

SAVINGS  AND  LOAN  CORPORATIONS   (continued). 

liability,   none   to   be  contracted  except  for   deposits,   573. 
may  loan   money,   on   what   terms   and   how,   571. 
for  how  long  a  time  a  loan  may  run,   571. 
to  w^hom  loan   may  be   made,   571. 
pi-ohibition  of  directors  and  officers,   57S. 
property  which  may  be  owned  by,   574. 

lot  and  building  in  which  business  is  carried  on.   574. 

such  as  may  have  been  mortgaged,  pledged,  or  conveyed  to 

it  in  trust,   574. 
such    as    may    have    been    purchased    at    sales    under    pledge, 
etc.,  574. 
publication   of  paid-up  capital  stock,   583a. 
report   of   unclaimed    deposits,    583b. 

reserve  fund  for  payment  of  losses  to  be  provided,   577. 
corporations  without  capital,  as  to,  577. 
excess  of  reserve  fund,  disposition  on  dissolution,  577. 
restrictions  on,   581. 
stock  may  be  owned  and  held  by  married  women  and  minors, 

575. 
true  names   of  persons   engaged   in   must   be  shown.    582. 

penalty  for  violation,  582. 
unclaimed   deposits,   report  of,    583b. 
vacancy  in   office,  w^hat  created,   578. 
within  what  time  remaining  stock  to  be  paid  in,  580. 
SAVINGS   BANKS.      See   tit.    Savins.s   au«l   Loan   Corporatuiiis. 
SCHOOf,   COMMITTEE.      See   tit.    Slander. 
SCIENTER.      See   tits.   Animal.s,  Vicious;   Negligeuoe. 
SEAL 

abolished,    1629. 
affixed,  how,  162S. 

officer  must  affix  to  acknowledgment,  1193. 
provision   abolishing  effect  on   instruments,   1629. 
corporate  seal.     See  tit.  Corporate  Seal. 
SEALED   INSTRUMENT 

distinction  between   sealed  and   unsealed   abolished,   1629. 
SEAMEN.     See  tits.  Mates  and  Seamen;  Sliipnia-ster. 

lien   of,   3056. 
SEAMEN'S  \VAGES 

as  to,   2063. 
SEAT  IN  CHURCH 

right  to  is  a  servitude.   801. 
SEAWORTHINESS 

of  ship,  what  constitutes,   2681. 

1272  V 


INDEX. 
[References  are  to  sections. 1 

SliCRET    SOCIETY    OF    ORDEK 

not   insurance  company,   45]. 

SECRETARV  OF  STATE 

certificate  of  incorporation,   prt;re(iuisites   for,    2!M. 
wlien  must  issue,  296. 

continuance  of  corporation,  proceedings   for,   2S7. 
SECTION 

as  used  in  code   refers  to,  what,   l-I. 
SEDLCTIOX.     See  tit.   Daiiiiigps. 

damages  for,  3339. 

in  general,  49. 
SEIZIX.     See   tits.   Coveiiaut   ol'  Seiieiu;   I^lvery  of   Sfl/.iu. 
SELF-nEFEXSE 

as  to  right  of,   43. 
SEMINARY.      See    tit.    Collese.s    aud    Seminaries. 
SEPARATE  PROPERTY.      See  tits.   Husband  and  Wife;  Married 

Women. 
SEPARATE    PROPERTY   OF   HTSBAND.      See    tit.    Husband   J»ud 
Wife. 

as    to,    163. 

in    general,   163. 

not  liable  for  debts  of  wife  contracted  before  marriage,  170. 
SEI'ARATE     PROPERTV     »H'     WIFE.       See     tit.     Hiisliaiid      and 
Wife. 

as  to,   162. 

filing  of,   IPC,   167. 

inventory    of,    165. 

liability   of  for  her  own   debts,   171. 

not   liable   for   husband's    debts,    171. 
SEPARATION.      See    tit.    Husband    aud    Wife. 
SERV.VNT.      See   tit.   Master   and   Servant. 
SERVICE 

child's    relinquishment    of    by    parent,    211. 

contract  of   limited   to   two   >-ears,   19S0. 

lien  for,   3051. 

limit  of  terni  to   two   years,   1980. 

on  foreign  corporation,  as  to,   405. 
SERA'ICE    WITH    EMPLOYMENT.      See    tit.    Eni|tloynieii(. 

compensation,   2072. 

salvage,    2079. 

voluntarily    interfering    with    property,    duties,    207S. 
SERVITI  DES.      See    tit.    Ea.senients    and    Servitudes. 
SETTLEMENT.      Marriage.      See   tit.    Marriase. 
S  E\  E R .\ T,   O  \\  \  10 R  S H I P 
.  what    is,    GSl. 

1273 


INDEX. 
[References  are  to  sections. 1 

SEXUAL,     IXTERCOVRSK.      See     tits.      Divorce;       HiinIciiiiI      and 

Wife, 
".SHAHIOH<U,I)EI{."      See    tit.    C'oriioratioiis. 

sHp:i<]i'-i\ii-i,iN<;  i)oc;.»i 

as    to,    3341. 

SHERIFF 

lien  of  on   levy  of  writ,   30.'i7. 
SHIP»I.\STER.      See  tit.   Ship'!-!  Muiiaj^er. 

abandonment    of   ship    terminates    master's   power,    2381. 
appointment    of,    2034. 
authority   of,    2044. 

on   behalf  of  owners   of  cargo,   237.5. 

to   borrow,    2374. 

to  ransom   ship,   2380. 
cannot   trade   on   his  own  account,  when,   204  2. 
care    and    diligence    required    of,    2043. 
impressing    private    stores,    2039. 
liability   for   acts    of  persons    employed   upon    tlie    ship,    2383. 

for   negligence    of   pilot,    2384. 
lien   of,   3055. 

master    as    general    agent    for    owner,    2373. 
may   abandon   ship,    when,    2040. 

duties    on    abandonment.    2041. 
must   be    on    board,    2035. 
must    take    pilot,    when,    2036. 

personal  liability   for  contracts  concerning  the   ship,   2382. 
power    over   passengers,    2038. 

over    seamen,    2037. 

to  hypothecate,   2377. 

to   make   contracts,    2376.  ' 

to    sell    cargo,    2379. 

niaster's   liability    for   cargo,   ^vhen,    2385. 

to    sell    ship,    2378. 

SHIP-OWNER 

liability  for  cargo  sold  by  master,   2385. 
SHIPS.      See   tit.    Sliips   and   Shipping. 

lien    on,    3060. 
SHIPS    AND    SHIPPING 

abandonment  of  ship,  2040. 

terminates    master's    authority,    2381. 
appurtenances,   961. 

average,    adjustment    of   by    master,    2388. 
bottomry.      See    tit.    Bottomry. 
capital    of    ship,    wages    of    seamen,    2063. 

1274 


INDEX. 
[References  are  to  sections.] 

SHIPS   AND   SHIPPING    (continued). 

cargo 

engagement    of    by    master,    2375. 

hypotliecation    of    by    master,    2377,    303S.  * 

master's  power  to   sell,   2379. 

sacrifice  of  for  safety  of  vessel,   2148. 

sale    of   by    master,    owner's    rights    of,    2385. 

sale    of   perishable,    2377. 

ship's    manager,   purchase    of   by,    3388. 
certi'flcate,    master's,    they    exerted    themselves    to    save,    etc., 

2059. 
charter   party.      See    tit.    Charter   Party. 

defined,   1959. 

manager   may   enter   into,   238S. 

mastermay   enter  into,   2373.  , 

charterer    has    insurable   interest,    26-6-5. 
collision   from   breach    of   rules.      See   tit.   Rule.s   of   IVavigratioii. 

loss  occasioned  by,  apportioned   how^,   973. 

rules    for   avoidina;,    970. 
conipensation 

of  manager,  20  7  2. 

of   seamen.      See   tit.    Mates   and    Seaineu. 
delivery  of   ship   not   necessary   to   validate   sale   of,    3440. 
deviation   from  voyage.      See  tit.  Deviation. 
domestic    ship,    definition    of,    963. 
equipments,   961. 

foreign    and    domestic    navigation,    962. 
foreign    and    domestic    ships,    how    distinguished,    963. 
foreign  ship,  what  is,   963. 
freightage.      See    tit.    Freightage. 
general  average.     See  tit.  General  A-»erage. 
hiring    of    ship,    1957. 

hypothecating  ship,    master's  power   of,    2375,    2377. 
rmpressing   private   stores,    as    to.    2039. 
insurance.      See   tit.    Marine   In.suranee. 
interest,   on  bottomrj-   contract,   3022. 
.iettison.      See   tit.  Jetti.son. 

jurisdiction   where  sliip   has  several    ownei-s,    !)(i4. 
laws    governing    niat>-    ami    seamen.    2066. 
license,   etc.,   of,   966. 
lien 

of  master.  .'!055. 

of    seamen,    3056. 

not  lost  by  grant,  2052. 

priority   of  on,   3029. 

1275 


INDEX. 
[References  are  to  sections.] 

SHIPS  AND   SHIPPING   (continued). 

loss  by   collision,   apportionment   of,    973.  . 

manager.      See   tit.    I^liip's   Slanager. 

mister.      See   tit.   Ship's   Ma.ster. 

mate.      See   tit.   Mates   and   Seamen. 

meeting   of  ships,   etc.      See   tit.   Rule.s  of  Xa^  ipralion. 

mortgage    o£ 

as   to,    2955,    2971. 

recordation   necessary,    2959. 
navigation   of   domestic   and    foreign   defined,    965. 
negligence 

liability   of   master   for,    2043. 
of  employee,   23S3. 
of  pilot,  2384. 
neutral  papers.     See  tit.   Insurance. 
nuncupative  will.     See  tit.  AVills. 

of    seamen,    1289. 
owner 

for, voyage,   liability   of,    965. 

respondentia.      See   tit.    Respondentia, 
part    owners 

as    to   jurisdiction    in    controversies    between,    964. 

as  to  whether  partners,   2396. 
passengers.      See  tit.   Common  Carriers  of  Passengers. 

master  may   engage,    2376. 

master's  power  over,   2037. 
perils   at   sea.      See   tit.   Perils  at    Sea. 

as  to  what  are,   2199. 

liability    for   loss   by,    2197. 
pilot,  liability  of  master  for  neglect  of,   2384. 

when  master  must  take  on,   2036. 
pilotage,    2036. 

ransom  of  ship,  master's  power  as  to,  2380. 
lecordation   of  transfer  of  vessel,   1173. 
registry  of  vessel,   966. 

repairs   of   ship,    master   may   procure,    2376. 
rules  of  navigation.      See   tit.   Rules  of  IVavigatioii. 
rules   for  passing.      See   tit.    Rules   of   IVavigation. 
sale   of   ship,   when    master    may    make,    237S. 

salvage 

as   to   in    general.    2079. 

waiver   of  right   of  by   seamen   void,    2050. 
seamen.      See   tit.   Mate.s  and  Seamen. 

special    agreement    with,    as    to    validity    of,    2053. 
seaworthiness.      See  tit.  Insurance  and  Seaworthinesj*. 

1276 


INDEX. 

[References  are  to  sections.] 

SHIPS  AND   SHIPPING    (continued). 
several   oivners 

jurisdiction   of  court  in  disputes   between,   964. 

partners,  as   to  whether  are,    2396. 
ship 

definition   of,    960. 

domestic    and    foreign    distinguished,    963. 

unseaworthy,    seamen    not   bound    to    go    out   on.    20ril. 
shipping,  definition   of,   960. 
shipwreclc,   deposit   in   case   of,    1S13. 
stowage,  as  to,   2117. 

supplies,  procuring  of  by   master.   2376. 

surety,   rights   of  apparent  principal    to   show   he   is   a.    2832. 
telegraph  cable,   damaging  of  for,   537. 
trading  of  on   account,   master  prohibited    from,    2042. 
transfer  of  interest   in   ship,   statute  of   frauds  affecting,    1135. 
unseaworthy  sliip,   seamen  not  required   to   go   out  on,   2051. 
voyage  and  deviation.      See   tit.   3Iarine  Insurance. 
wages    of    seamen.      See    tit.    Mates    and    Seamen. 
wharfinger.      See   tit.   W^arehousenian. 

SHIP'S    MAIVAGER.      See    tit.    Shipmaster. 

compensation    of,    2072. 

definition   of,   2070. 

duties    of,    2071. 

what  power   he   has,    2388. 

what  power   he   has  not,    2389. 
SIGNATURE.      See    tits.    Contracts;    Mark;    AVills. 

as   to  what  constitutes,    14. 

in   indorsement,    3110. 

of   officer   taking  acknowledgment,    1193. 
SIGNS.      See   tit.    Trade-Marks   and    Signs. 
SINGULAR 

includes   plural,   14. 
SINKING   FIND 

establishment    to    pay    railroad    bonds.    4.'i7. 
SKILL.     See    tit.    Care. 
SLANDER 

malice,    not    inferred,    wMum),    4S. 

privileged   coniiiiunieatinii.      See   til.    I>rivile|j;ed    I'liltllcatlon. 

what    is.    46. 

SOCIAL   ASSOCI.VTION.      See    tits.    i{eliKl<Mis,   Social   ami    Heucvo- 
lent    Corporations. 

incorporation    of,    593. 

1277 


INDEX. 
[References  are  to  sections.] 

SOCIETIES   FOIt   THE   PREVENTION    OF   CRUELTY  TO    CHIL- 
DREN  AND  ANIMALS 

agents    authorized   to    act   as   police    officers,    607f. 

badge   to  be  worn,    607f. 

may  make  arrests,   607f. 
children    who    may    be    arrested    by,    607g. 

commitment   of,    607g. 

engaged  or  used  in  violation   of  law^   607g. 

found    begging    or    gathering    alms,    607g. 

found  destitute,  607g. 

frequenting  company   of  theives  and  prostitutes,   (J07g. 

order  of  court   upon   examination,   607g. 

power  to   institute  proceedings,    607g. 
compensation  from  city  or  county,  607e. 

amount  of,  607e. 
complaints    by   for   violation    of    law,    607b. 
fines,    penalties,    and    forfeitures,    607e. 

disposition   to   be  made  thereof,    607e. 
formation  of,  607. 

magistrate  to  aid   corporation    and   officers,    607c. 
members   authorized   to   act   as   police    officers,    607f. 
penalty  for  resisting,   607f. 
police  to  aid  corporation  and  officers,  607c. 
power   to   receive   and   dispose   of   property,    607a. 

amount  of  property  that  may  be  held,   607a. 
pre-existing   corporations    organized    for   like   purpose,    607d. 
SOLDIER.      See    tit.    y^ill.s. 

nuncupative   will   of.   as   to,   12S9. 
SOLEMNIZATION  OF  MARRIAGE.      See  tit.   Marriage. 
by   whom   made,    70. 
form   of,    71. 
SPECIFIC    PERFORMANCE.      See.  tits.    Contract;    Deed. 
against   whom    relief    granted,    3395. 

agreement    to    sell   by   party    having   no    title,    not,    3394. 
cases   where  will  be  denied,   3390. 

contract  signed  by   one  party   enforceable   by   other.    3388. 
contracts  which  cannot  be  enforced  specifically,   3390. 
<levisee   or   legatee,    against,    1301. 

di.stinction   lietw'een    real   and   pei'sonal   property,    33S7. 
forfeiture,    3369. 
in  what  cases  compelled,   3384. 
liquidation   of   damages   not   a   bar    to.    33S9. 
mutuality,    prerequisite,    3386. 
no  reinedy  unless  mutual,  3386. 
of  revised  contract,   3402. 

1278 


INDEX. 
[References  are  to  sections.! 

SPECIFIC  PERFORMANCE    (continued). 

penalty,  3389. 

real    estate    of    contract    to    transfer,    1741. 

reformed    contract    of,    enforced    after,    3402. 

relief    against    parties    claiming-    under    person    l)i>un(l    lo    per- 
form., 3  395. 
as  to  generally,   3395. 

what  cannot   be   speciflcall\-    enforced.    3390. 
as  to  generally,   3390. 

what   parties    cannot    be    compelled    to    perform,    3391. 

what    parties    cannot    have    in    their    favor,    3392. 

when   enforced,   33i>  1. 
.SPECIFIC   REMEF 

as    to    generally,    3366,    3367. 

as   to,   when   allowed,    3366. 

for   cancellation    of   instrument.      See    tit.      Caiicellatiou   of    Im- 
strumeut. 

forfeiture,   3369. 

for   possession   of   personal    property.      See   tit.    Claim    and    De- 
livery;   Personal    Property-    (possession   of). 

for    possession    of    real    property.       See    tits.    Ejeotnieut;    Real 
Property. 

for    rescission    of    contracts.       See    tits.    Coutraets;    Rescission 
of   Contracts. 

for   revision    of  contract.      See   tits.   Contracts;   Revision. 

for  specific  performance   of  obligations.      See   tit.   Specific  Per- 
formance. 

how   granted,    3367. 

judgment  for  possession   of  real  property,   3375. 

judgment  for  possession  of  title,   3375. 

not  allowed  to  enforce  penalty,  3369. 

penalty   not   enforceable   by   judgment    for,    3369. 

preventive  relief,  3368. 

recovery    of  personal    property,    judgment    for,    3379,    33S0. 

support,   right    to   conduct,    as    an    easement,    801. 

when    allowed,    3366. 
SPEED.      See    tits.    Railroads;    Street    Railroads. 

of    carriers    for    hire,    2104. 
SPIRITITALIS!»I.      See    tit.    W'llls- 
SPRING.      See   tit.   Appropriation   of  ^^ater. 
ST.VGE.      See    tit.    Common    Carriers    cf    Passengers. 

obligation   of  to   cairy   baggage,    2180. 
ST\I,I,IOX.      See    tits.    IJens:    Other    l.icns. 

action    to    enforce    lien,    3064. 

lien    of   person    in    charge    of,    3062. 

must    lile   vtM'ilied   claim,   3063. 

1279 


INDEX. 
rRefprences  are  to  sections.] 

STATE 

islands    l>el(ing    to,    wlien,    1U16. 

preference   to    be    given    to    bj'    carrier,    when,    2171. 

property   may   be    held    by    as   private   proprietor,    669. 

what   lands   are   property   of.,    670. 
STATE   LAND 

grant  of  railroad  of,   47  4. 

wood  and  eartli  may  be  taken  from  by  railroad,  when,   476. 
STATEMENT.        See      tits.      Libel;      Privileged      Coinniuniealion; 

Slauder. 
STATIONS.      See   tit.    Railroads. 
STATUTE.      See    tit.    Coustruetiou    of    Statute. 

code,    continuation   of,    5.  • 

construction    to    be    liberal,    wlien,    4. 

injunction    restraining    enforcement    not    granted,    3423. 

private,    effect   of   code   on,    20.  ' 

repeal  of,  by   enactment  of  code,   20. 

retroactive,  code  not,  3. 

revival  of,  code  does  not  work  by  repealing  other  statutes,  20. 
STATUTE   OF  FRAUDS 

agency,    contract    of,    as    to,    2309.  , 

agent,    employment    of    within,    when,    1624. 

assignment  for  benefit  of  creditors,   effect  of  on,   345S. 

as  to,  in  general,   1624. 

as  to  what  instruments  are  reauired  to  be  in  writing,   1024, 

auctioneers'    memorandum.      See    tit.   Auotloneers, 

effect  of  written   contract,    1625. 

guaranty,    within,    2793,    2794. 

lease   within,    when,    1624. 

manufacturer,   contract   of,   within,    1740. 

marriage.      See  tit.   Marriage. 

mortgage  is  within,   2921.  n 

oral 

contract   within,    when,    1622. 
transfer  by,   when.    1052. 

real    estate   broker   ^vithin.    1624. 

realty 

contract    for    sale    of    within,    1741. 
controlled    by,    1624. 

sales,   as   to   when   within,    1624,    1739. 

ship,   transfer  of  interest  i's  within,   1135. 

specific   performance,    effect    of   on,    333S.    v 

suretyship,    when,    within,    1624. 

trust,    transfer    on    within.    1135. 

1280 


INDEX. 
[Hefcioiu'es  are  to  sections.] 

STATUTE    OF    FRAUDS    (continued). 

will.s,    as    to    requirements    of    writing,    ](jL'l. 

wine,   sale    of   not   witliin,    3440. 
STATl'TK    OF    1, IMITATIONS.      See    tit.    I>iniitaUoiiN    of     \ctiuii.H. 
STEAMEKS    MEETING.      See    tit.    Rules    of    Nnvi^raiioii. 
STEPFATHEK.      See    tits.    Acluptioii:    HuNband    and    Wife. 

riglits   and    liabilities   of   respecting   stepchildren,    20!). 
STOCK.     See    tits.    Certificates   of   Stock;    StocklioUlcrs. 

liow    issued,    323. 

purchased    by    corporation,    disposition    of,    .^44. 
STOCK    IN    TRADE 

sale  of  to  be  recorded,  3  4  40. 
STOCKHOIiDER.     See   tit.    StockliolderN'    ^IretiiiK. 

certificate   of  stock.      See   tit.   Certificate  of  Stock. 

corporation    having   no   capital    stock,    member    liable    individ- 
ually,   322. 

creditors    may    Institute    joint    or    several    actions,    322. 

liability    determined    by    amount    of    stock,    32^2. 

liability    of,    322. 

how    determined,    322. 

vf  foreign  corporation,   liabilit.v  of,  322. 

paying  proportion  of  debt  released,   322. 

released,  when,  322. 

stock    held    as    collateral    securit>'    or    1)\-    trustee    holder    iimI 
liable,   322. 

suit  against  may   be  joint  oi-  several,   322. 

term    "stockholders,"    definition    of,    322. 

trust    funds    in    hands   of    guardian    or    trustee    not    liable,    322. 
STOCKHOLDERS'    MEETING 

proxies,    when    void,    321b. 

essential   to  validity   of,    321b. 
maximum    period    of,    321b. 
revocable,    321b. 

who    may    vote    at,    321b. 
STOIiEN    GOODS.      Sec    tit.    Sale. 
STOPPAGE    IN    TRANSITU 

as   to   generally,   3076. 

how    stoppage   effected,    3079. 

in    general,    3076. 

insolvency    of   consi'gnee,   what   constitutes,    3077. 

seller    may    stop,    when,    3076. 

stoppage,    effect    of,    3080. 
how   effected,   3079. 

transit,   when   ended,    307S. 

when  consignor  may  stop,  3076. 

11  1281 


INDEX. 

[References  are  to  sections. J 

STORAGE.      See  tits.  DeiioNit;  W'arehouseuieu. 

as   to  what   constitutes,    1851.  , 

care,  degree  of  required,  1852. 
.  carrier,   placing   freight   on,    2120. 

compensation    for,    1853. 

finder,    right   to   put   thing   in    storage,    1S68. 

liow   to   be   terminated.    1854. 

sale   of   unclaimed  baggage   to   pay,    1862. 
STO^VAGE.      See   tits.   Carriers  of  Property;   Sliip-s  aud   JSIiippiut;. 

as   to,    2117. 

on    deck,    2154. 
STRAXGER.      See   tits.   Contracts;  Obligatious. 

attornment  to,   1948. 

grant   may  inure   for   tlie   benefit  of,   when,    1085. 
STRATAGEM   OR    FRAUD.      See    tit.    Divorce. 

separation  produced  by  desertion,   97. 
STREAM.     See  tit.  AVaters. 
STREET    RAILROAD.      See    tit.    Street    Railroad   Corporatioiix. 

cars   of   to  be   modern   in   constructi'on,    501. 

city's  right   to   improve   street,   etc.,    reserved,    507. 

code   sections   applying  to,    510. 

crossings,   obstruction   of,   in   making,   500. 

elevated,   as   to,    498. 

grants   not  to   be   made   near   election.    497. 

license  tax  on,  508. 

municipality,    regulations    respecting,    503. 

owned  by  natural  person,   511. 

passengers    on.       See    tit.    Carrier.s    and    Coniniou  .Carriers    of 
Passengers. 

penalty    for    overcharging,    504. 

rates  of  fare.     See  tit.   Fare. 

right  of  w^ay,  restrictions  on,   498. 

ticket.      See   tit.   Ticket. 

time  within   whi'ch   to    be   completed,    502. 

track 

authority  to  lay,  how  obtained,  497. 

for   grading  purposes,    time   to   remain,   509.  ' 

imposing   restrictions    on   laying,    497. 
to  be  laid,   how,   498. 

two   lines    may    use    same,    wlien,    499. 
STREET     RAII,ROAD     CORPORATIONS.      See     tit.     Street     Rail- 
roads. 

agency    of  person    collecting    fares,   proof   of.    506. 

cities  and  towns  may  make  regulations,  503. 

crossing    tracks    already    constructed,    500. 

1282 


INDEX. 
[References  are  to  sections.] 

STREET   RAILROAD  CORPORATION    (continued). 
franchise    of,    497. 
law    governing',    510. 
license    to   be  paid   municipality,    508. 
limitations    and    restrictions,    497,    498. 

obstructions    must   not    extend    more    than    one    block,    .ioo. 
overcliarging,  penalty  for.  504. 
propelling    poAver,    497. 
rates   of   fare,    501. 

penalty   for  violation,   501. 
reserved  rights,   507. 
tickets  must  be  furnished  by,   505. 

penalty   for   failure    to   comply,    505. 
time   alloived 

extension    of    time,    502. 

failure    to    comply,    forfeiture,    502. 
track 
authority    to    lay,    how    obtained,    497. 

extent   to   which   may   be   used,    499. 

for    grading   purposes.    509. 

imposing   restrictions   on    laying,    497. 

manner   of  laying,    498. 

motive  power,    509. 

time   may   remain,    509. 

two   lines   of  street  railroad   may    use   same,    499. 
to   be    laid   how^,    498. 
STRIKES,    MOB    VIOLENCE,    ETC.      See    tits.    Coninioii    Cari-u-rs: 

Kailronds. 
SIBAGEXT.      See    tits.    Agent:    Ma.ster   ami    Servant. 
liability  of,  as  to,   2022. 
of  factor,   2367. 
represents   principal,    2351. 

rightfully    appointed    represents    principal.    2351. 
unauthorized    employment    of,    2350. 
when    may    be    appointed.    2351. 

SUBMISSION    TO    JURISDICTION    OF    COl  RT    BV    Ml.\OK.      See 

tits.    Infant;    Minor. 
SUBPOENA 

may    be    issued    liy    nfficoi-    taking    acknowledgment.    1201. 
SUBROGATION 

of  creditor  of  securities   held   by   surely,   2854. 
of  insurer.     See  tit.   Marine   InMuranee. 

of   lienor,   right   to,    of   inferior   lienor,    2904. 

1283 


INIJKX. 
[Refereiites  are  to  sections.] 

.SUBROGATION   (continued). 

of   new   crrporation   on    consolidation    of    railioad.s,    ^7:!. 
of    redcmptioner,    2903. 
of   security,    2S48,    2S49. 
SUBSTITUTE 

employee's    liability    for,    19S0. 
SUCCES.SIOX.      See   tit.   Words  ami   I'hrsiNe.x. 
advancements.      See    tit.    AdvauceinentN. 

constitute    part    of    distributive    share,    1395. 
definition    of,    1397. 

to  lieir  who   dies  before  decedent,    1399. 
value    of,    liow   determined,    1398. 
when  too  much  or  not  enough,  1396. 
aliens.      See   tit.   Aliens. 

may  inherit,   when   and    liow,    1404. 
ascending  line,  succession  by,   1391. 
by    representation,    1403. 
children,    rights    vest    in,    when,    140  3. 
collateral    line,    succession    by,    1390. 
community  property.     See  tits.  Commuuity  Propertj-;  Hiisbauil 

and    Wife. 
distribution    on    death    of    husband,    1402. 
on  deatli   of  wife,   1401. 
limitation    of    surety's    obligation,    2836. 

interpretation,    rules    of,    2837. 
performance     or     offer    of    performance     exonerates     suiety, 

2839. 
relation  not  altered  by^  judgment,  2838. 
rules     of    interpretation,     2837. 

surety   exonerated   by  performance   or   offer  of  performance, 
2839. 
ris.iits   of    sureties 

as   rights   of   guarantor,    2844. 

entitled    to    reimbursement    from    principal.    2847. 
accjuires   right   of   creditor,    2848. 
to  benefit  of  sureties  held  by  creditor,   2848. 
to    have   property    of   principal    taken    first,    2849. 
may  compel  principal  to  perform  obligation  when  due,  2846. 
may    require    guarantor    to   proceed    against    principal,    284^. 
rights   of  creditors,    2854. 

to  benefit  of  securities  held  bj-   surety,   2854. 
surprise,  contract  made  under,  specific  enforcement  not  grant- 
ed. 3390. 
SURVEY 

of  wagon   road,   filing  of,   etc.,   513. 

1284 


INDEX. 

[References  are  to  seetions.l 

SURVEYED    CLAIMS.      See    tit.    Mining    C'luims. 
SURVEYOR-GENERAL. 

right  of   way   selected   by   corporation    to   be   sent   to,    47N. 

surplus   of   insurance   company,    how   invested,    421. 
SURPLUS   PROFITS   OF   CORPORATION.      See   tit.   CuriMiratiouM. 
SURPLUS    AVATER.      See    tit.    Approiiriations. 

SURRENDER    OF    INSTRUMENT.      See    tits.    ContractH;    Obliga- 
tions. 

when    a    condition    of   payment,    .3137. 
SURVIVORSHIP 

choses    in    action,    survival    of,    9.54. 

cotrustees,  between,  2288. 
SUSPENSION.      See    tit.    Suspen.sion   of  tlie   Power  of   Alienation. 
SUSPENSION   OF   OWNERSHIP 

by    trust,    7  71. 

restriction  of,  770. 
SUSPICION.      See    tit.    Wills. 

SWAMP-LAND  DISTRICT.      See   tit.   Corporations. 
"TARE" 

on   lialed  hops,   995. 
TAX 

encumbrance,    included    in    the    term,    1114. 

license  on   street  railways,   50S. 

life  tenant  to  pay,  840. 

on   land  and   building  corporations,    648%. 

on    mortgage    premises,    2877. 
TAXES  AND  ASSESSMENTS 

embraced    in    term    "encumbrances,"    1114. 
TEACHER.      See    tits.    Libel;    Slander. 
TECHNICAL    WORDS.      See    tits.    Con.strii<>tiiin;    Will.^. 

effect   of   in   wills,    1327. 

not   necessary    to  valid   will,    1328. 
TELEGRAMS.      See    tit.    Carriers    of    Messages. 
TELEGRAPH   AND   TELEPHONE    CORPORATIONS 

articles  of,   what  to  set  forth.      See  tit.   Corporations. 
as    to    generally,    291. 
prerequisites    to    filing,    292. 

care    in    transmission    of    messages,    2101,    2161. 

conditions    on    which    damages    to    subaqueous    cable    may    be 
recovered,   539. 

franchise   of,   537. 

injury   to,    liability    for,   537. 

liability    for    damaging    telephone    or    telegi-apli    prop(>rty,    537. 
for  delay  or  refusal  to  carry,   2209. 

1285 


INDEX. 

[References  aie  to  sections.] 

TELEGRAPH   AND  TELEPHONE  CORPORATIONS    (t  (inliniie(]  i. 

malicious   injury    to  property   of,   penalty   for,    .">,'5N. 

may   dispose   of   certain   riglits,    540. 

iiiONSUge.s 

compensation    for    delivery    of,    J161. 

obligation    to   deliver,    2161. 

order    in    which    to    be    transmitted,    22U7. 

penalty   for   wilful    or   malicious   injury   to    teleplione    or    tele- 
graph   company,    .5  38. 

property   of,    lease   and   transfer   of,    540. 
penalty   for  malicious   injury   to,   5.38. 

right  of  way   along   roads,   watercourses,    etc.,    536. 

rights,    what    may    be    disposed    of,    54  0. 

subaqueous   cable,   injury   to^   damages    for,    5  39. 
monument  to  show  location  of,  539. 
notice   of   location   of,    539. 

subscripti'on   to,   amount   of   requisite   to    filing  articles,   295. 
TENANCY    AT  WILL 

may    be    terminated    by    notice,    789. 

notice   to   quit,    effect   of,    790. 
not    necessary,    when,    794. 

re-entry,  when  and   how  made,   791. 

summary    proceedings,    793. 

notice    not    necessaiy    before    action,    when,    793. 
TENANCY   IN    COMMON 

devisees    taking   under    will    are,    1350. 

of  spouses,   161. 
TENANT.      See    tit.    Lnnilloril   ami   Tenant. 
TENANT    FOR    LIFE 

duties    of,    840. 

lieirs   of,   take   as  purchasers,   when,    779. 

rights    of,    818. 
TENANTS    FOR    Y^EARS 

as    to    rights    of,    819. 
TENDER.      See   tit.   E.vtiuetion   of   Obligation. 

and    deposit    distinguished.    1500. 

by    whom    to    be    made,    1487. 

interest    stopped    by,    1504. 

of   performance    of   obligation,    effect   of,    1485-1505,    1511. 

place    where    to   be    made,    1489. 

to  whom   to  be  made,   1488. 

when    to   be   made,    1490. 
TENSE 

as    to    of   words   used    in    code,    14. 
TESTAMENTARY    CAPACITY.      See    tit.    ^VIlls. 

1286 


INDEX. 

[References  are  to  sections.] 

TE.STA^IKM'AKV  UISI'O.SITIOX.      See  tit.  AVills. 

TESTIFY 

as   to  meaning  of,    14. 

THEATER 

right   to  admission    to,   and   penalty   for   refusal,    51. 

THEFT,     See    tit.    Seamen. 

by    seamen    during   voyage    forfeits    wages,    2063. 
THINGS  IN  ACTION.     See   tit.   Cbo.ses   In  Action. 

definition    of,    953. 
THIRD    PERSONS 

act   of   not   to    prejudice,    3520. 
agent 

responsibility    to,    2343. 

to   deliver   to,    when,    2344. 
cofisideration   paid   by,    effect    of    transfer,    S53. 
contracts   for   benefit   of.      See   tit.    Contracts. 
delivery   to   in   escrow,    1057. 
estate    for   life   of,    766. 

grant   may    inure    to   benefit    of,   when,    1085. 
information    or    beli'ef    of,    in    marine    insurance,    2670. 
liability  of  partners  to,   2442. 
may    enforce   contract,    when,    1559. 

must   see   to   application    of   trust   property,    when,    2244. 
necessaries    furnished   by   for   infant,    207. 

furnished  by  to  wife,   174. 
not  to  be  prejudiced  by  ratification  of  agent's  act,  2313. 
not  to  be  prejudiced  by  reformation  of  contract,   3393. 
rem.'iinder  on  estates  granted  for  the  life  of,  775. 
specific  performance   of  contract   enforced   by,    3390. 
tender    by.      See    tit.    Extinction    of    Obligrations. 
trust,    for   the    benefit    of,    2250. 
trustee,    voluntary,    2243. 
who   liable   to   as  partner,    2444. 
who    must    suffer    by    acts    of,    3543. 
THREAT 

consent    to   contract    obtained   by,    voidable,    1567,    1682. 
divorce   for   desertion   caused  by,   98. 
menace,   definition   of,   1570. 
to  obtain   advantage 

by  partner,  2410. 

by   trustee,    2228. 
will  procured  by  void,    1272. 
THRESHING   M.\CHINES.      See    tit.    I.ienN. 
lien   of   workmen    on,    30fil. 

1287 


INDEX. 
[Rpff-rcncep  ai-e  to  sections.] 

TICKET.      See    tit.    Knilroud.s. 

of   railroad   companies,   490. 

entitle   purchasers   to   what,    490. 

penalt\-    for    failure    to    provide,    490. 
TIDE    WATER 

damages   for   injuries   to,   3346. 

land    bounded    by,    rights    of    owner,    830. 

Hen    on.      See    tit.   LogRer's   I>ieii. 
TIMBER.      See  tit.  Trees. 

damages    for   negligently   setting    fire,    3346a. 
TIME.     See    tit.    Recording. 

action    for   nullity,    of   commencing,    S3,    107. 

computation    of,    as    to,    10. 

divorce,    of    commencing    actions    for,    127. 

entire,    servant's   belonging   to   master,    2013. 

essence  of  contract,   not   unless  declared,   1492. 

grant,    presumption    as    to    of   delivery,    1056. 

of   taking    effect    of   code.    2. 

railroad   may   regulate,   465. 

representations   in   insurance,   refer  to  wiiat,   2577. 

void   act   not   confirmed   by,    3539. 

words   in    will   relate   to   what,    1336. 
TIME   OF   CREATION 

of  estate,  749. 
TITLE 

accession   by.      See   tit.   Aeeession. 

acquired     subsequent    passes,     wlien,     1106. 

buyer  acquired  better  than   seller  had,   when.   1112. 

!)>■    devise,    1311. 

by   occupancy,    1006. 

in    fee   simple,   when    presumed   to   pass,    1105. 

instrument  evidencing,  how  proved  for  record,   1160,   1203. 

inventory  of  wife's  property,  notice  of,   166. 

judgment  for  possession  of,  as  to,  3375. 

lien  on  property  does  not  transfer,   2SSS. 

of    grantor    of    trust    property,    865. 

of    loaned    property,    1885,    1904. 

redelivery    of    thing    granted    does    not    re-invest.    1058. 

Miibsequeutly-acquiretl 

inures   to   benefit   of   mortgagee,   2930. 
passes   by    operation    of    law,    when,    1106. 
passes  by  will,    1312. 

to  freight,  passes  by  transfer  of  bill  of  lading,   2127,   212S. 

to    highway,    passes    by    transfer,    when,    1112. 

to    personal    property,   passes    bj-    transfer,    1136. 

1288 


INDEX. 
rReferenoes  are  to  seotions.] 

TITLE    (continued). 

transfer  of,   what  passes  by,   1083,   1105. 

trust  property,  what  vests  in  grantor,  86,5. 

warranty   of 

to   personal    property,    1765. 
by   agent,   2323. 

wliat  passes  by  transfer  of  property,   10S3. 
TITLE   DEEDS 

as  to  what  are,  994. 
TITIiE  INSURANCE.      See  tit.   Fire,   Mariue,  and  Title  Iiisiirauoe. 
TITLE    INSIIR.\NCE    CORPORATION.      See    tit.    Corporatiou.N. 

certificate    of   insurance   commissioner   to   do    business,    4,T3y. 

investment    of    funds    of,    421,    421  [a],    453t. 
TOLL.      See    tit.    Rridgres,    Ferries,    \A'liarf,    Cliiite    nud    I'ier    Cor- 
|i  (I  rations. 

avoiding,    penalty    for,    519. 

b.y  wagon -road  corporations,  514. 

detaining  persons    unnecessarily    for,    518. 

liighways,    known    on    public,    515. 

penalty 

for  avoiding,   519. 

for   taking   unlawful,    514. 

rates    of,    to    be   posted    at    gate,    516. 

right  to  take,  as  a  servitude,   802. 

toll-gatherer,    may    detain    traveler,    when,    517. 
TOLL-GATE 

avoiding,    penalty    for,    519. 
TORT 

tlamages  for,  3333,  3339,  3340. 

deceit,    1709-1714. 

indemnity    against,    2773. 

in    general,    1708. 

negligence,    etc.,    1714. 

of   agent,    principal    liable,    2338. 

of   infant,    41. 

of  lunatic,    41. 

thing    wrongfully    taken,    restoration,    1714. 

wrongful    acts,    1714. 
TOAVN    LOTS 

not    to    be    granted    to    railroads,    475. 
TR.\nE.      See    tit.    Contracts. 

contracts    in    restraint    of,    1673,    1674. 

1280 


INDEX. 

[References  are  to  sections.! 

THADK-MARlvS 

ownership,   subjects    of,    6.55. 
sale   of,   warranty   presumed,    1773. 
warranty  of  by  seller,    1774. 
what  may   be  appropriated  as,   991. 
TRADE-MARKS    AND    SIGNS 
appropriation    and    use    of,    991. 
good   will    in,    transfer    of,    993. 
title   to,    991. 
TRANSFER 

as   to,  what  is,   1039. 

defectively-executed     instrument,     record     of     imparts    notice, 

1207. 
•lellvery 

cancellation    of   grant    does    not    constitute    redelivery,    1058. 

constructive    deli'very,    1059. 

in    escrow.      See   tit.    Esoro-»v. 

nature    and    necessity    for,    1054. 

necessary   to  procure,   1054. 

presumed  to   have   been   made   at   date,    1055. 

surrender  of  grant  does  not  constitute   redelivery,   1058. 

to   grantee   is  necessarily  absolute,    1056. 
effect  of  transfer,  1083. 

grant    may    inure    to    benefit    of    stranger,    1085. 

incidents   of   transfer.    1084. 

what  title  passes,   1083.  % 

how  interpreted,  1066. 
iiiterpretatiou 

against  grantor,  1069. 

irreconcilable  provisions,   1070. 

li'mitations,   how  controlled,   1067. 

meaning  of  "heirs"  and  "issue"  in  certain  remainders,  1071. 

membership    in    co-operative    agricultural,    etc.,    association, 
of,    653u. 

recitals,    when    resorted   to,    1068. 

words   of   inheritance   unnecessary,    1072. 
in    general,    1039. 
mode    of   transfer,    as    to,    1052. 

grant,   what  is,   1053. 

oral   transfer,    1052. 

written    transfer,    1053. 
of   meinbership   of   co-operative   agricultural,    etc.,   association, 

653u. 
of  products  of  the  mind,  982. 
of  stock.      See  tit.   Cerfifieates  of  Stock,  Tran.«ifer. 

I2f)n 


INDEX. 

[References  are  to  sections.] 

TRAN"SFER    (continued), 
voluntary  transfer,   1040. 
what   may   be   transferred,    10  14. 

choses  in  action.     See  tit.  Chosex  in  Artioii   (Ti-ansfer  «jf). 

owner   out   of  possession    may    transfer,    1047. 

personal  property.      See  tit.   Personal  Property,  Transfer  of. 

possibility    coupled    with    an    interest,    1045. 

real   property.      See   tit.    Real    Property    (Transfer   of). 

right   of   re-entry,    1046. 
TRANSFER,    FRAUDITLEIVT.      See    tit.    Fraudulent    Transfer. 
presumed    to    be    fraudulent,    when,    3440. 
with    intent    to    defraud    creditors,    3439.-' 

TRANSIT 

property    in,    mortgaged,    where    located,    2960. 
stoppage   in.      See   tit.   Stoppage  in  Transitu. 

TREES 

damage    for    injuries    to,    3346. 

line-trees,    833. 

trunks  wholly   on   land   of  one  belong   to   whom,    833. 

TRESPASS 

accession    of    property    by    wilful,    1031. 
cutting    or    in.iuring    timber    by,    3346. 
personal    property    acquired    by,    1031. 
wagon    road,    penalties    for    trespassing    on,    520. 
TRESPASSER.      See    tits.    NeRllKenee;    OliHgrations    Imposed    by 

lirt'tV. 

TRIAL 

by    jury    in    apprenticeship   proceedings.      See    tit.    Master    and 
Appre-ntice. 
TRIFLE 

disregarded    by   law,    3533. 
TRUSTEES.     See   tit.    Uses   and   Trusts. 

all    must    act,    2268. 

appointed   by   court   for   benefit   of   third   person,   when,    2252. 

breach  of  trust,  measure   of  liability   for,   2237. 

certain  transactions  by,  forbidden,  2230. 

cotrustees,   how   far   liable   for   each    other,    2239. 

di'scretionary  powers  of  trustees,   2269. 

duty   of   as    to    appointment   of   successor.    22G0.    - 

guilty  of  fraud,  when,  2234. 

influence  not  to  be  used  for  his  own  advantage,   2231. 

investment    of   money    by,    2261. 

involuntary    trustee 

must   sec    to   application    of    trust   property,    when,    2244. 

1201 


INDEX. 
rUcferences  are  to  sections.  1 

TRUSTEES    (continued). 

involuntary   trustee    (continued). 

third   per.son    liable   as,   when,    224  4. 

who   is,   2223. 
liability   for  cotrustee^  as   to,   2239. 
liability    for    losses    only,    wlien,    2238. 
measure   of  liability    for  breach   of  trust,    2237. 
mingling    trust    property   with    his    own,    2236. 
must    obey    declaration    of    trust,    2258. 

degree  of  care  and   diligence   in   executing   tiust,    2259. 
not  to  assume  a  trust  adverse  to  interest  of  beneficiary,  2232. 
not   to   use  property   foi^   his   own   profit,    2229. 
obligations  of,  as  to,   2228. 
office  of,  ihow  vacated,  2281. 

discharge    of    trustee,    2282. 

removal   by   court,    2283. 
partners    are    for    each    other,    2410. 
powers    of    trustees,    2267. 

discretionary    powers^    2269. 
presumptions  against,   2235. 

purchase   by,    of   claim    against    trust    fund,    2263. 
rights   of   trustees,   as    to,    2273. 

cMnipensation    of    trustee,    2274.  ' 

indemnification  of  trustee,  2273. 

involuntai'y    trustee    becoming    such    by    his    own    fault    not 
within   provision,    2275. 
superior   court   as   trustee,    2289. 
survivorship   between   cotrustees,    22SS. 
tei-mination  of  trust.     See  tit.  Trust. 
to    disclose    adverse    interest,    2233. 
what   constitutes   one   a,    2219. 
TRUST    FUNDS 

may    be    invested    in    mortgage-participation    certificates    and 
guaranteed   securities,   453ff. 
TRUSTS.      See  tit.   U.se.s  and  Trusts. 

for    benefit    of    third    person.s.      See    tit.    Trusts,    tor   Benefit    of 

Third    Persons. 
for   what   pui-poses   a    trust    may   be    created,    2220. 
funds    of    may    be    invested    in    mortgage-participation    certifi- 
cates, 458ff. 
how   created,   2221. 

involuntary   trust   resulting  from    negligence,    2224. 
involuntary  trust,  what  is,   2217. 
involuntary   trustee.      See    tit.   Trustees. 

who   is,    2223. 

1202 


INDKX. 
[References  are  to  sections.] 

TRUSTS  (continued), 
not  revocable,  2280. 
obligations   of   third   persons.      See    tit.    Trustees. 

to   see   to  application    of  property,   when,    2244. 

when   an    involuntary   trustee,    224.3. 
obligations  of  trustees.     See  tit.  Trustees. 

as   to   generally,    222S. 
parties   to   the   contract,   2218. 

succession  or  appointment  of  new   trustees.     See   lit.  Truslees. 
suspension  of  ownership  by,  as  to,   771. 

teruiluatiou   of   trust 

Iiow    extinguished,    2279. 
as    to    generally,    2279. 
transfer  of  property   held  in,   to  be  recorded,   1H54. 
trustee's    office,    how    vacated.      See    tit.    Trustees. 

by    death    or    discharge,    2281. 

voluntary    trust 

how   created   as   to   trustee,    2222. 
how  created  as   to  truster,   2221. 
wliat    constitutes    one    a    trustee.      See    tit.    Trustees. 
as   to,   generally,   2219. 

TltrSTS   FOR    BENEFIT   OV   THIRD    PER.SONS 

claim   against    trust   fund,   purchase   by   trustee,    2263. 

compensation    of   trustee,    2274. 

creation   of,    2251. 

declaration  of  trust,  2253. 

degree    of    care    and    diligence    in    executing    trust,    2259. 

discharge   of   trustee,    2282. 

duty    of    trustee    as    to    appointment    of    successoi-,    2200. 

hfiw    extinguished.    2279. 

indemni'flcation   of  trustees,   2273. 

investment    of    money    by    trustee,    2261. 

interest   charged    to   trustee    on    failure    to    invest,    2262. 
nature    and    creation    of.    2251. 

who   are   trustees   for,    2250. 
not   revocable,    2280. 
obligations   of   trustees,    2258. 
office   of   trustee,   how  vacated,   2281. 
powers    of    trustees,    2267. 

all  must  act  together,  2268. 

as    agents,    2267.  ' 

discretionary    powers,    2269. 
purchase  of  claim  against   tru.«t   fund   by   trustee,   2263. 

1293 


INDEX. 
[References  are  to  sections.] 

TRUSTS   FOR  BENEFIT   OF   THIRD   PERSONS    (continued). 
removal    of    trustee    by    court,    2283. 
riglits  of  trustees,   2273. 
succession    or   appointment    of   new    trustee,    2287. 

superior  court  as   trustee,   2289. 

survivorship    between    cotrustees,    2288. 

vacant    trusteesliip    filled    by   court,    2287. 
superior    court    as    trustee,    2289. 
survivorship   between   cotrustees,    2288. 
termination    of    trust.      See    tit.    Trust. 
trustee   appointed   by   court,    when,    2252. 
trustees   must   obe\'   declaration    of    trust,    2238. 
TUNNEL    RIGHT 

boundaries    of,    1426f. 
location  of 

as   to    generally,    1426e. 

record    of,    1426g. 

what    constitutes,    1426e. 
record  of  location,   1426g. 

IN  CLAIMED  DEPOSITS 

biennial  report  of,  by  savings  banks,   583b. 

UNDERSTANDING 

contracts   by   persons   without.      See   tit.    Contracts   by   Persons 
AVithout    Understanding. 
as  to  generally,   3  8. 
UNDERTAKING.      See  tits.  Guaranty;  Indemnity;   Suretyship. 

UNDUE    INFLUENCE.      See    tit.    AVills. 

as    to    what    constitutes,    1575. 

confidential   relations  between   the  parties,  presumption  as   to, 
against  trustee,   2235. 

contracts   procured    by    voidable,    1567,    1689. 

definition   of,    1575. 

rescission   for,    1688. 

thing   gained   by,    trust,    2224. 

trust   arising   through,    2225. 

wills   procured   by    or   revoked   througli.    1272. 
UNINCLOSED    LAND.      See    tit.    Homestead. 
UNIVERSITIES.      See    tits.    Colleses   and    Seminaries. 
UNLAWFUL   CONTRACTS.      See    tit.    Contracts. 

as   to  what  are,    1667,    1668. 

contracts  fixing  damages  void,  1670. 
exceptions   to   the   rule,    1671. 

contracts    in    restraint    of    marriage,    1676. 

1294  ^     ' 


INDEX. 

[References  are  to  sections;.] 

UNLAWFUl^  CONTRACTS    (continued), 
contracts   in   restraint   of   trade,    1673. 

exceptions    in    favor    of    sale    of    good    will,    lti74. 
interstate    commerce.      See    tit.    Interstate    Conunerce. 
monopolies.      See   tit.    Mono|iolles. 
exceptions    in    favor    of    partnership    airangements,    liJTo. 
UNLAW^PUIi    OBLIGATIONS.      See    tit.    Obliji^utlous. 
riNLAWFlil.   TRANSFER 

certain    instruments   void   as    again.st    purcha.ser,    l:i27. 
not   void   as   against   purchaser,   when,    122S. 
power   to   levoke,    when,    1229. 
I' N LIQUIDATED    DAMAGES.      See    tit.    Daiiia^'es. 
IMVRECORDED  DEED.      See   tits.   Deed;   Notice. 
I  NRECORDED   INSTRUMENT 

valid    between    the    parties,    1217. 
UNSOUND    MIND.      See    tits.    Persou.s    of    UuNuiind    Miiul;    Wills: 
Words   and   Phrases. 
contracts    by    persons    of.       See    tit.    C   ntracts    by    l*ersons    of 
Unsound    Mind. 
as    to    generally,    39. 
USAGE 

agent    to   conform   to,    2349. 
definition    of,    1644. 
employee    to    conform    to,    1982. 
meaning   of    words,    determined    by,    1644. 
ISES    AND    TRUSTS.      See    tits.    Trustees;    Trusts. 
author   of   may   devise,   etc.,   864. 
certain   sales,    etc.,   by   trustees,   void,   870. 
estate   of  trustee  ceases,  when,   871. 
exercise   of  vested  powers,    860. 

for  what   purpose   express   trust   may   be   created,    857. 
to  mortgage  or  lease  real  pr(ipert>',   S.")7. 
to  receive  rents  and  profits  of  real  property  and  accumulate 

same,    857. 
to    receive    rents    and    profits    of    real    prf)perty    and    api)ly 

same,    857. 
to  sell  real  property,   857. 
funds  of  trust  may  be  invested  in  mortgage-participation  cer- 
tificates,  etc.,   453ff. 
grantor   of   trust   property,    title   of,    865. 
interest   remaining  in    grantor   of   express   trust,    S6fi. 
must    be   in   writing,    852. 

omitting    trust    in    conveyance,    effect    of.    869. 
purchaser   for   value   without   notice   protected,   when,    856. 
restraining   disposition    of   trust,    867. 

1295 


INDEX. 

[  Ueft  rcnces  are  to  sections.] 

USES  AND   TRUSTS    (continued). 

sales,   etc.,   by   trustees   void,   wlien,    ,S70. 

title  of  grantor  of  trust,   865. 

transfer  to  one  for  money  paid  by  anotlier,  S53. 

trust    presumed,    when,    853. 

trustees   in    lands   liable   to   creditors,   when,    859. 

vesting  of  power   to   sell   or   mortgage   real   property,    858. 

what    may   exist,    847. 
V  At;  RANT 

cliild  who  is  to  be  arrested  and  committed,  607g. 
VAI^IDATING 

defectively    executed    instruments,    1207. 
certified  copies  as   evidence,    1207. 
VALUABLE    CONSIDER ATION.      See    tit.    Cou.sideratioii. 
VARIANCE.      See    tit.    Aekiio-»vle«lKiiieiits. 
VEHICLES.      See    tit.    Carriage    of    Pa.sNeiiger.s    for    Hire. 

common    carrier   of  persons,    to   provide    sufficient,    2184. 

not   to    be    overloaded,    2102. 
VENDEE 

lien    of,    3050. 
VENDOR'S  LIEN 

as  to,   generally,   3046-3049. 

as    to    lien    of   seller    of   real    property,    3046. 

homestead    liable    for.    -when.    1241. 
VESSELS.      See    tits.    Ships;    Sliips    aud    Sliippiiig. 

transfer   of,   how   recorded,    1173. 
VESTED    FEE.      See    tit.    Fee. 
VESTED   RIGHTS 

as   to   what   are.    305. 

future    interests,    694. 
AESTING   OF   POWER   TO   SELL,   IN   MORTGAGE,   ETC. 

as   to,    S5S. 

exercise  of  power,  860. 
VICIOl'S    ANIMALS.      See    tits.    Auimals;    Negliseiife. 
VIGILANT 

law  gives  preference  to  the.  3527. 
VISITATION.      See    tit.    Corporations. 

AITICULTIRAL     ASSOCIATIONS.      See     tit.     Co-operative    Agri- 
cultural,  etc.,    Associatiims. 
VOID    CONDITION.      See    tit.    Conflition. 
A'OLlTjXTARY  CONVEYANCE.      See  tit.  Transfer. 

definition    of,    1040. 

validity   of,   1040,    3442. 
VOTING.      See    tit.    Corporations. 

by    co-operative    corporations,    653zb. 

1296 


INDEX. 

[References  are  to  sections.] 

VOTING   TRUST.      See    tit.   Corporations. 

WAGERING 

contracts.      See   tit.   Contracts. 
insurance,   as    to,    2558. 
WAGES.      See   tits.  Master  and  Servant;   Nates  and   Seamen. 

for   services   where   there   is   no   employment,    2078. 
of   minor,    212. 

personal   representatives   entitled   to   receive,   when,   20G2. 
wife's   earnings,  as   to,    169. 
WAGON   ROAD   CORPORATIONS 

articles  of  incorporation.     See  tit.  Corporations. 

what    must    contaiti,    291. 
bridges    and    ferries.      See    tit.    Bridges,    Ferry,   Wliarf,    Chute 

and    Pier    Corporations. 
bridges    or    ferries    on    line,    514. 

not  to  be  charged  on  highways  or  public  roads,   515. 
bridges   or   ferries,    rates   must   be   posted,    516. 

tolls,   as   to,   in   general 
limit   of,    .')14. 

jienalty  for  violation,   514. 
commissioner.s    to   act   in   conjunction   with   surveyor,    512. 
crossing.s,   as   to,   513. 
forfeiture  of  franchise,  514. 
franchise  of,  524. 

horseless   vehicles,   franchise   to   construct   road   for,    524. 
how  to  be  laid  out,   511. 
hypothecation  of  property,   522. 
mortgage   or   hypothecation   of  property,    522. 
natural  person,  ownership  by,   523. 
opening  highway   taken  as,   513. 
penalty 

for  excessive  toll,  514. 

for  trespass  on  property  of,  520. 
posting 

date  of  franchise,   516. 

rate   of  tolls,   516. 
reduction   of  tolls,  when,   521. 
revenue,  how  apportioned,  521. 
subscription 

amount  necessary  to  entitle  to  file  articles,  293. 

toll-gate,  as   to,   513. 

toll-gatherer,  right  to  detain  until  payment  made,   517. 
not    to   detain   unreasonably,    518. 
survey  and  map  to  be  filed  and  approved,   513. 

1297 


INDEX. 
[References  are  to  sections.] 

WAGON  ROAD  CORPORATIONS   (continued). 

tolls.     See   "Bridges  or  Ferries  on  line"   this   title. 

avoiding-  tolls,  penalty  for,   519. 
-    persons  detained  until  toll  paid,   517. 

rates  to  be  posted  at  gate,  516. 

reduced,    when,    521. 

to  be  reduced,  when,   521. 

trespass  on   property  of,   penalty,   520. 

unnecessary   detention  or   overcharges,   damages   for,   518. 

what   may  be  charged,   514. 
WAIVER 

communication  of  in  insurance,   2569. 
lunatic's  rights  not  lost  by,   40. 
of  demund  by  pledgeor  or  debtor,  3004. 
of  notice  of  sale  of  pledged  property,  .3003.   ■ 
of  objections  to  offer  of  performance,   1501. 
of  option  as  to  delivery  of  goods  purchased,   1501. 
of   presentment    and  notice,    3159. 
of  protest,  3160. 

of   provisions   of   the   code,   by   stipulation,    3268. 
of  sale  of  corporated  stock,   349. 
\V^\IA'ER  OF   COXDITIOX.      See    tit.   Condition. 
AVAR 

dissolution    of    partnership    by,    2450. 
AVAREHOUSE   RECEIPT 

classification  and  effect  of,   1858b. 
indorsement  of  negotiable  receipt,   1858c. 
negotiability,   1858d. 
not  to  be  issued,  when,   1858. 
not  to   issue  except,   1858. 
penalties,  1858d. 
requisites   of,   1858b. 
second  receipt,  1858. 

transfer  of   propert>'   l:>y   indorsement   of,    1858b. 
AVAREHOUSEMEX.      See    tit.    Warehouse   Receipt. 
liabilities,   generally,    1858f. 
liability  for  loss  by  fire,   1858f. 
non-negotiable   receipt  and   its  effect,   1858d. 
penalties  and  liabilities,   1858f. 
property  not  to  be  removed  from  witliout  consent  in  writing 

1858a. 
receipts   of.      See   tit.   AVarehouse   Receipts. 
removal  of  property,   written  consent  necessary,   1858a. 
transfer  of  property  in,  by  indorsement  of  receipt,   1858b. 

1298 


INDEX. 

[References  are  to  sections.] 

WARRANT  OF  AUTHORITY 

breach  of  by  agent,  damages  for,  3318. 
AV  VRRANTV.     See  tit.  Sale. 

agent's   authority   with    reference   to,   2323,    2342. 

breach   of,   rights   of  party,   17S6. 

by   indorsement,   3116. 

covenants  for,   1463. 

definition  of,   1763. 

implied   in  contract  of  sale,   when,   1764. 

in   exchange    of   money,    1807. 

in   insurance.      See   tit.   Insurauoe. 

lineal  and   collateral  warranties  abolished,    1115. 

of  money,  on  exchange,   1804. 

of  quality  of  personal  property,  damages  for  breach  of,  3312. 
for  special   purposes,   damages   for  breach   of,   3314. 

of   title,    1765. 

of  title   to   personal   property,   damages  for  breach  of,   3313. 

on  judicial  sale,  1777. 

on   sale  by   sample,   1766. 

where  buyer   relies  on  statement  of  seller,   1767. 
WATER-RIGHTS 

maintenance  of  flow  of  water  in  stream  to  canal  takes,   1410'.i. 
AVATER\VAVS 

teleplione  ar^d  telegraph   lines  along,   536. 
AVAY.     See  tit.  Right  of  Way. 

as  to   boundary   by.      See   tit.   Ways,  Boundaries  by. 
WAYS  OP   NECESSITY.      See    tits.   Easements;   Servitude. 
WAYS,  BOUNDARIES  BY.     See  tit.  Boundaries. 

as   to,   831. 

lateral  and  subjacent  support,  as  to,  832. 
AVEIGHING   AND   MEASURING.      See   lit.    Tndentiiicatiou. 
WHARF.      See   tits.   Bridge.v,  Ferry,  AAliarf,  Cliute   and    Pier   Cor- 
porations. 
\AHARFI\GER.      See   tit.    AVarehousemen. 
AA  IDOAA^ 

inheritance  by.      See   til.   Sueoes«l«»n. 

legaey   to 

cliar,i;ed    witli    doVits   of   testator,    wlien,    13G1. 
inlei't'st   on,   acci'ucs    wlioii.    130!). 

succession    of.      See    tits.    Conmiunity    Property!    iliishand    and 
Wife;  Sueoession. 

1299 


INDEX. 

[References  are  to  sections.] 

WIPE.      See    tits.    Community     Property;     Hu.sband     and     Wife; 
Wills. 

inherits   from  husband,   1400. 

succeeds,  when.      See  tit.   Community  Property;  Husband  and 
W^ife;   Succession. 
WIFE'S   DEBTS.      See   tits.   Community  Property;   Husband   and 

W^ife. 
WIFE'S   VOID   CONTRACT.      See   tits.     Contract;    Husband    and 

Wife. 
AVIL.FUL,   MISCONDUCT.      See   tit.   Damages. 
WILLS 

advancements.      See  tit.  Advancements. 

are  ademptions,  when.     See  tit.  Ademptions. 
after-born  child  revokes,  when,   1306. 
annuity.     See  tit.  Annuity. 
as  to  who  may  make  a  will,   1270. 

bequest  of  interest  and  income,  accrues  from,   when,   1366. 
of  residue,   effect  of,   1333. 
vests,  when,  1341. 
certain  words,  effect  of  use  of,  1334. 

charitable  bequests.     See  tit.  Charitable  Uses  and  Bequests. 
charitable    uses    and    bequests.      See    tit.    Charitable    Uses    and 

Bequests. 
child  born  after  testator's  death.      See  tits.   After-born   Child; 
Posthumous  Child. 
takes   under   will,    when,    l.'iHg. 
codicil.      See   tit.   Codicil. 

probate  of.      See  tit.   Probate. 
competency  of  witness  to,  1280. 
condition   precedent,    what   is    in,    1348. 
effect  of,  1347. 

when  deemed  performed,   1348. 
condition   subsequent,    1349. 
conditional  devises  and  bequests,   1345. 
conditional   will,  1281. 

construction   of.      See    "Rules   of  Construction"    this   title, 
construction    of   particular   words    in.       See     tit.     "Words     an»l 

Phrases. 
conversion   takes   effect,   when,    1338. 

death    of   devisee   or   legatee   before    testator,    effect    upon    in- 
terest   in    remainder,    1344. 
devise   or  bequest  to  a  class,    1337. 

of  all  real  or  personal  property,   1331. 
devise  vests,   when,   1341. 

1300 


INDEX. 
[References  are  to  sections.] 

WILLS    (continued). 

devisees  take  as  tenants  in  common,   1350. 

estates  devised   chargeable   with   debts,    1358,   1359. 

execution  according:  to   tenor,   1371. 

execution  and  revocation  of  wills,  1270. 

gifts   1o   subscribing-   witnesses   void,    1282. 

harmonizing  various   parts   of  will,   1321. 

holographic,   definition   of,   1277. 

in  what  case  devise   not  affected,   1322. 

intention  to  be  ascertained  from  the  will,  1318. 

interpretation,    rules   of,    1319. 

law  governing  validity  and   interpretation,   1376. 

mistakes  in,  1340. 

mutual  T«-1I1 

as  to  generally,  1279. 

probate   of,   1291. 

proof   of  nuncupative   wills,    1290. 

requisite  of  valid,  1289. 
nature  and  designation   of  legacies.     See  tit.  Legacies. 
olographic.      See   "Holographic"    this   title, 
power  to  devise,  how  executed  by   terms  of  will,  1330. 
republication   by  codicil 

as  to  generally,   1287. 

nuncupative    will,    how   executed,    1288. 
rules  of  construction 

as  to  generally,   1319. 

certain    words    not   necessary   to   pass   fee,    1329. 

harmonizing  various  parts  of,   1321. 

intestacy  to  be  avoided,   1326. 

several   instruments  to  be   taken   together,    1320. 

technical  words   not  necessary,    1328. 

technical   words  used   in,   effect  of,   1327. 

where   ambiguous   or   doubtful, '  1323. 

words  taken   in   ordinary  sense,   1324. 

words    to   receive   operative    construction,    1325. 
specific  devises  and  legacies.     See  tit.   Legacies. 
testator's  intention   to  be  carried  out,   1317. 
to  be  proved  within  what  time,  1364. 
what  may   pass  by  will,   1274. 
who  may  take  by  will,  1275.  , 

will  made  out  of  state  not  valid,  wlion,   1285. 
will  of  married   woman.      See   tit.   I>inrrie«l   Women. 

may  make,  alter,  or  revoke  will,   1273. 
witness   subscribing   will,  competency  of.     See   tit.   AVitnesH. 

as   to  generally,    1280. 

1301 


INDEX. 
[References  are  to  sections.] 

WILLS    (continued). 

witness   to,   creditor  competent,   1282. 
witness  to  add  residence,   1278. 
witness   to   will  as  devisee,    1283. 
words  of  donation  and  limitation,   1325. 

to  what   time  words  refer,   1336. 
words  of  to  be   taken  in  ordinary  sense,   1324. 
,  T»Titten  will 

as  to,   how  executed,   1276. 

after-born  child,  unprovided  for,  revokes.     See  tits.  After- 
born   Child;   Po.sthuinous  Child. 
as  to  generally,   1306. 
contract  of  sale  not  revocation,  1301. 
conveyance,  when  not  a  revocation,  1303. 
effect   of  marriage 
,  of  man  on  his  will,  1299. 
of  woman   on   her  will,   1300. 
evidence  of  revocation,   1293. 
mortgage   not  a  revocation,   1302. 
revocation 

by  codicil,    1305. 

by  marriage,  and  birth  of  issue,   1298. 

by  subsequent  will,   1296. 

antecedent  not  revived   by,   1297. 
of  duplicate,   1295. 
WINE 
sale   of 

delivery   necessary   to   validity,    3440. 
recording,    3440. 
to  be  in  writing,   3440. 
WITNESS.      See   tit.  Wills. 
acknowledgment  of,   1185. 
creditor  may  be  to  will,   1282. 
"depose,"   definition   of,   14. 
to  nuncupative  will,  1197. 
to  prove  handwriting,   1199. 
not  necessary  to   holographic  will,   1277. 
oath   to   in  taking   acknowledgment,    1185. 
I)rivileged,   testimony  of.  Is,  47. 

recorded    instrument,   may   be   proved   otherwise   than    by   sub- 
scribing, 1197. 
subscribing 

instrument  may  be  proved  otherwise  than  by,  1197. 
manner  of    proving   instrument    by,    1196,    1197. 

1302 


I  INDEX. 

[References  are  to  sections.] 

WITNESS   (continued). 
subscribiug:    (continued). 

to  be   known   to  officer  taking'  proof,    1196,   1197. 
to  prove  what,   1197. 
subscription   of,  definition   of,  14. 
testify,   definition   of,    14. 

to  prove   execution   of   instrument   must   be   personally    known 
to  officer,  1202. 
witness  must  prove   what,   1197. 
to   win 

as   to,   1276,   1279. 

cannot  take  under  as  by  succession,   12S3. 
gift  to,  1282. 

who  is  a  devisee,   ri.s:hts   of,   1283. 
WOOD 

right   to   take,    802. 
AVOODS 

-  damages  for  firing,   u346a. 
"WORDS" 

meaning   of   in   certain   remainders,    1071. 
WORDS  AND  PHRASES 

"agent"   includes   what,   2295. 

"create  debts"    meaning   of,    579. 

"descendants,"   in  will,   1334. 

"family"  meaning  of  in  will,  1334. 

"for  whom   it  may  concern"   in  policy  of   insurance,   2592. 

"heirs"  in  will,   1334. 

how  construed,  13. 

♦*i.ssue" 

in   will,  1334. 

moaning  of  in  certain  remainders,   1071. 
"legal  representatives"   in   will,    1334. 
"near  relations"   in    will,   1334. 
"nearest  of  kin"  in  will,   1334. 
"next  of  kin"  in   will,   1334. 
"personal   representatives"   in  will,   1334. 
"relations"   in  will,   1334. 
"relatives"  in  will,  1334. 
"representatives"  in   will,    1334. 
AVORDS  OP   INHERITANCE 

unnecessary  to  transfer  fee,  1072. 
W^ORKMAN 

lien  on  threshing  machine,  etc.,   3061. 

1303 


INDEX. 
[References  are  to  sections.] 

WORKMAXSHIP 

combined    with    propertj'    of    another,     ownership     of     article 
produced,    1214. 
WRKCKS   AXD   WRECKED   PROPERTY 

deposit  in  case   of  shipwreck,   1815. 
duty  of  depositary,  1816. 
wag-es  of  seamen  not  lost  by,  2058. 
\VRITI\«.      Sec    tit.   .statute  of  Frauds, 
contract   in 

how  altered,  1698. 

prevented    by    fraud    from    being    in,    specific    enforcement, 
1623. 

printed  part  controlled   by,   1651. ■ 
erroneous  disregard,   how   far,    1640. 

fraud,   prevent  putting  contract  in,   enforcement,   1623. 
in.strnn)ent  in 

consideration    presumed,    1614. 

negotiable,   transferable,   1459. 
intention  of  i)arties,  how  ascertained,   1637. 
private   property   in,    985. 

productions  of  the  mind  in,  property  of,   980,   984. 
supersedes  prior  oral  negotiations,   625. 
transfer  must  be  in,  when,   1135. 
WRITTE.X    IXSTR13IENT 

consideration    presumed,    1614. 
AVRITTEX   RECEIPT 

debtor  has  a  right  to  require,  1499. 
AVROXG 

consent  to,  no  wrong  suffered,   3515. 

lunatics  liable  for,   41. 

minors  liable   for,   41. 

own,  advantage  cannot  be  taken  of,   3517. 

parties  equally  in  the,  courts  will  grant  no  relief,  3524. 

remedy  for  every,   3523. 

AVROXGFIL   OCCUPAXCY 

damages  for,  3334. 

YEARLY  WORK.     See  tits.  Development  AVork;  3Iining  Claims. 


1304 


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